Securing the Independence of the Judiciary - The Indian ...mckinneylaw.iu.edu/iiclr/pdf/vol10p245.pdf · SECURING THE INDEPENDENCE OF THE JUDICIARY-THE ... before them according to

SECURING THE INDEPENDENCE OF THE JUDICIARY-THEINDIAN EXPERIENCE

M. P. Singh*

We have provided in the Constitution for a judiciary which will beindependent. It is difficult to suggest anything more to make the SupremeCourt and the High Courts independent of the influence of the executive.There is an attempt made in the Constitution to make even the lower judiciaryindependent of any outside or extraneous influence.'

There can be no difference of opinion in the House that ourjudiciary mustboth be independent of the executive and must also be competent in itself Andthe question is how these two objects could be secured.'

I. INTRODUCTION

An independent judiciary is necessary for a free society and aconstitutional democracy. It ensures the rule of law and realization of humanrights and also the prosperity and stability of a society.3 The independence ofthe judiciary is normally assured through the constitution but it may also beassured through legislation, conventions, and other suitable norms andpractices. Following the Constitution of the United States, almost allconstitutions lay down at least the foundations, if not the entire edifices, of an

* Professor of Law, University of Delhi, India. The author was a Visiting Fellow, MaxPlanck Institute for Comparative Public Law and Public International Law, Heidelberg,Germany. I am grateful to the University of Delhi for granting me leave and to the Max PlanckInstitute for giving me the research fellowship and excellent facilities to work. I am alsograteful to Dieter Conrad, Jill Cottrell, K. I. Vibute, and Rahamatullah Khan for their comments.The author also wishes to thank Swati for assistance in the preparation of this Article.

1. Dr. Rajendra Prasad, President of the Constituent Assembly and later President ofIndia, Speech to the Constituent Assembly of India preceding the motion to adopt theConstitution (Nov. 29, 1949), in I I CONSTITUENT ASSEMBLY DEBATES 498.

2. Dr. B. R. Ambedkar, Chairman of the Drafting Committee of the ConstituentAssembly and later Law Minister of India Reply to the debate on the draft provisions of theConstitution on the Supreme Court, (May 24, 1949), in CONSTITUENT ASSEMBLY DEBATES,vol.VIII, 258.

3. See Philip S. Anderson, Foreword to Symposium, Judicial Independence andAccountability, 61 LAW & CONTEMP. PROBS. 1, 2 (Summer 1998); Stephen G. Breyer,Comment, Liberty, Prosperity, and a Strong Judicial Institution, 61 LAW & CONTEMP. PROBS.3 (Summer 1998); see also K. T. Shah, CONSTITUENT ASSEMBLY DEBATES, vol. VIII, 218-19;preamble to UN Basic Principles on the Independence of the Judiciary; para. I of the DraftUniversal Declaration on the Independence of the Justice, reprinted in CIJL Bulletin, No. 25-26,at 17, 39 (Apr.-Oct. 1990); ABIMBOLA A. OLowOFOYEKu, SUING JUDGES 3 (1993); THEFEDERALIST, No.78, at 505 (Alexander Hamilton); Archibald Cox, The Independence ofJudiciary: History and Purposes, 21 U. DAYTON L. REv. 565,566 (1996); cf. G. N. Rosenberg,Judicial Independence and the Reality of Political Power, 54 REV. OF POL. 369, 398 (1992).

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independentjudiciary. The constitutions or the foundational laws on judiciaryare, however, only the starting point in the process of securing judicialindependence. Ultimately the independence of the judiciary depends on thetotality of a favorable environment created and backed by all state organs,including the judiciary and the public opinion. The independence of thejudiciary also needs to be constantly guarded against the unexpected eventsand changing social, political, and economic conditions;4 it is too fragile to beleft unguarded.5

India has given to itself a liberal constitution in the Euro-Americantraditions which aims at establishing a free and democratic society. It alsoaims at the prosperity and stability of the society. Its makers believed thatsuch a society could be created through the guarantee of fundamental rightsand an independentjudiciary to guard and enforce those rights. Therefore, theframers of India's Constitution dealt with these two aspects with maximumand identical idealism.6

A. Meaning of the Independence of the Judiciary

The independence of the judiciary is not a new concept but its meaningis still imprecise.7 The starting and the central point of the concept is

4. See SHIMON SHETREET, JUSTICE IN ISRAEL: A STUDY OF THE ISRAELI JUDICIARY 4(1994) [hereinafter SHETREET, JUSTICE IN ISRAEL]. The independence of the judiciary and theprotection of its constitutional position is not achieved in an instant act, but rather over a periodof time by a continuous struggle which takes place within the framework of an ongoing anddynamic process. Thejudiciary, and the social forces which support it, must always be on guardto maintain the independence of the judiciary in the face of unexpected events and changingsocial, economic, or political circumstances. See id.

5. On the fragility of the independence of the judiciary see the recent controversy thatarose in the United States on the judgment of Judge Harold Brier in United States v. Bayless,913 F. Supp. 232 (S.D.N.Y 1996), vacated on reconsideration, United States v. Bayless, 921F. Supp. 211 (S.D.N.Y. 1996). Among many legal writings on the episode, see Steven Lubet,Judicial Independence and Independent Judges, 25 HOFSTRA L. REV. 745 (1997); Stephen B.Bright, Political Attacks on the Judiciary: Can Justice Be Done Amid Efforts to Intimidate andRemove Judges from Office for Unpopular Decisions?, 72 N.Y.U. L. REv. 308 (1997); MonroeH. Freedman, The Threat to Judicial Independence by Criticism ofJudges: A Proposed Solutionto the RealProblem, 25 HOFSTRA L. REV. 729 (1997). For more instances see, Robert Stevens,A Loss of Innocence?: Judicial Independence and the Separation of Powers, 19 OXFORD J.LEGAL STUD. 365 & n. 1 (1999) [hereinafter Stevens, A Loss ofInnocence].

6. See GRANVILLE AUSTIN, THE INDIAN CONSTITUTION: CORNERSTONE OF A NATION 26,164. See also Mahendra P. Singh, Constitutionality of Market Economy, in LEGAL DIMENSIONSOF MARKET ECONOMY 1 (M.P. Singh et al. eds., 1997); H. M. SEERVAI, CONSTITUTIONAL LAWOF INDIA 2484, 2944 (4th ed. 1991-96).

7. "While there is widespread concerns on the obvious importance of the judiciary, theliterature on it is meagre, and the concept itself has never been fully unpacked." ROBERTSTEVENS, THE INDEPENDENCE OF THE JUDICIARY 3 (1993) [hereinafter STEVENS, THEINDEPENDENCE OF THE JUDICIARY]. See also ERIC BARENDT, AN INTRODUCTION TOCONSTITUTIONAL LAW 129 (1998) ("But it is unclear what independence ofthejudiciary really

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SECURING THE INDEPENDENCE OF THE INDIAN JUDICIARY

apparently the doctrine of the separation of powers.8 Therefore, primarily itmeans the independence of the judiciary from the executive and thelegislature. But that amounts to only the independence of the judiciary as aninstitution from the other two institutions of the state without regard to theindependence of judges in the exercise of their functions as judges. In thatcase it does not achieve much. The independence of the judiciary does notmean just the creation of an autonomous institution free from the control andinfluence of the executive and the legislature. The underlying purpose of theindependence of the judiciary is that judges must be able to decide a disputebefore them according to law, uninfluenced by any other factor. For thatreason the independence of the judiciary is the independence of each andeveryjudge. But whether such independence will be ensured to thejudge onlyas a member of an institution or irrespective of it is one of the importantconsiderations in determining and understanding the meaning of theindependence of the judiciary.9

In a comprehensive analysis based on the contributions of leadingjuristsand international bodies on the independence of the judiciary, Shetreet takesinto account all of these considerations.'0 Explaining the expression"independence" and "judiciary" separately, he says that the judiciary is "the

means."); Steven Lubet, Judicial Discipline and Judicial Independence, 61 LAW & CONTEMP.PROBS. 59, 74 (Summer 1998) ("It may well turn out that judicial independence is easier toprotect than to define.").

8. While the doctrine of separation of powers ensures liberty by preventing concentrationof powers in one person or body and thereby puts a restraint on the executive and legislative,it also ensures the exercise of judicial power that is unhindered by the other two branches.

9. See Siracusa Draft Principles on the Independence of the Judiciary, reprinted in CIJLBulletin No. 25-26, at 59 (Apr.-Oct. 1990), which read:

Independence of the judiciary means (1) that everyjudge is free to decide mattersbefore him in accordance with his assessment of the facts and his understandingof the law without any improper influences, inducements, or pressures, direct orindirect, from any quarter or for any reason, and (2) that the judiciary isindependent of the executive and legislature, and has jurisdiction, directly or byway of review, over all issues of a judicial nature.

Id. art 2. See also U.N. Basic Principles on the Independence of the Judiciary, paras. 1-7 andDraft Universal Declaration on the Independence of Justice ("Singhvi Declaration"), paras. 2-8,reprinted in CIJL Bulletin No. 25-26, at 17, 38 (Apr.-Oct. 1990). For some other relevantliterature see Pat Polden, Judicial Independence and Executive Responsibilities: The LordChancellors Department and the Country Court Judges, 25 ANGLO-AM. L. REV. 133 (1996);Cox, supra note 3, at 566; Rosenberg, supra note 3, at 377; Stephen G. Breyer, JudicialIndependence in the United States, 40 ST. LOUIS U. L.J. 989 (1996); Dorean M. Koenig,Independence of the Judiciary in Civil Cases and Executive Branch Interference in the UnitedStates: Violations ofInternational Standards InvolvingPrisoners and Other Designed Groups,21 U. DAYTON L. REV. 719, 722 (1996).

10. Shimon Shetreet, Judicial Independence: New Conceptual Dimensions andContemporary Challenges, in JUDICIAL INDEPENDENCE: THE CONTEMPORARY DEBATE 594(Shimon Shetreet & Jules Deschanes eds., 1985) [hereinafter Shetreet, Judicial Independence].Much reliance has been placed on this source for the following discussion on this issue.

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organ of government not forming part of the executive or the legislative,which is not subject to personal, substantive and collective controls, andwhich performs the primary function of adjudication."" Dealing with"independence," after citing a few definitions with which he does not fullyagree, 2 he differentiates between the independence of the individual judgesand the collective independence of the judiciary as a body which togetherconstitute "independence." To Shetreet, independence of the individual judgeconsists of the judge's substantive and personal independence. The formermeans subjection of thejudge to no authority other than the law in the makingof judicial decisions and exercising other official duties, while the lattermeans adequate security of the judicial terms of office and tenure. 3 Theindependence of individual judges also includes independence from theirjudicial superiors and colleagues."'

Shetreet's treatment establishes that the independence of the judiciarymeans and includes the independence of the judiciary as a collective body ororgan of the government from its two other organs as well as independence ofeach and every member of the judiciary-the judges-in the performance oftheir roles as judges. Without the former the latter cannot be secured andwithout the latter the former does not serve much purpose. Therefore, the two,even if separable, must be pursued together. A system which ignores one orthe other cannot make much progress towards, much less achieve, theindependence of the judiciary.

B. Components of the Independence of the Judiciary

"The independence of the judiciary and the protection of itsconstitutional position," contends Shetreet, "is not achieved in an instant act,but rather over a period of time by a continuous struggle which takes placewithin the framework of an ongoing and dynamic process."' 5 Therefore, itmay not be possible to lay down all the conditions in advance, either in theconstitution or otherwise, which will secure and ensure perpetualindependence of the judiciary. Such conditions will have to be checked and

11. Id. at 597-98.12. Id. at 594-95 ("[A] judiciary which dispenses justice according to law without regard

to the policies and inclinations of the government of the day.").[T]he organs administrating justice can only be subordinate to the law, and thatonly the law can influence the contents of the decisions made by these organs.No other state authority, not even the highest, is allowed to influence thedecisions made by the judicial organs. This judicial independence is a guaranteefor the fulfilment of the legal security of the individual.

Id. at 594-95, 659 n. 11 (quoting Erkki Juhani Taipale).13. See id. at 598.14. See id. at 599.15. SHETREET, JUSTICE IN ISRAEL, supra note 4, at 4.

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revised from time to time. A few of the conditions are, however, so basic tothe independence of the judiciary that without them judicial independencecannot exist. Some of them may be assigned to the collective independenceof the judiciary as an institution, while others may be assigned to theindependence of individual judges.

The most important aspect in the independence of the judiciary is itsconstitutional position. Just as the constitution provides for the compositionand powers of the executive and the legislature, it should also provide for thejudiciary. If the constitution vests the judicial power in the judiciary, so muchthe better. Otherwise the constitution may provide for the composition of thecourts and their jurisdiction, and for the appointment, terms of office, andtenure of the judges. The constitution must ensure a constitutional positionof dignity to the judiciary. The constitution must also ensure administrativeindependence of the judiciary, such as supervision and control overadministrative staff, preparation of its budget, and maintenance of courtbuildings. It must prohibit ad hoc tribunals and the diversion of cases fromordinary courts, ensure the natural judge principle, ordain respect for andenforcement by the other branches of the government of court decisions,provide for separation of judges from the civil services, and prohibitdiminution of judges' service conditions.16 Some of these matters may beentrusted to legislation; however, there must be enough assurance in theIndian Constitution to that effect so that the judiciary is able to commandrespect in the eyes of the people and is able to attract the ablest persons asjudges.

Again, judicial tenure and appointment must be beyond the control ofthe executive. The best tenure is for life, but it may also be up to a particularage without any possibility of its abrupt termination. Extension beyondretirement is also inconsistent with the independence of the judiciary.Probationary appointments should not be allowed; part-time, ad hoc, andtemporary appointments should be avoided and must be restricted toemergency situations. Moreover, the procedure for such appointments mustbe the same as for regular appointments. Judicial salaries must be beyond theexecutive and legislative reach with provision for automatic upward revisionwith changes in the price index or at least regular and timely adjustment ofsalaries with the passage of time. Salaries should not be subject to any ad hoccut except perhaps in emergencies. Transfer ofjudges without their consent

16. In this regard provisions of the German Basic Law are worth noting. Article 92 veststhe judicial power in the judges. GRUNDGESETZ [Constitution] [GG] art. 92. Article 97provides that thejudges shall be independent and subject only to the law, see id. art. 97, and thatany disciplinary action against the judges under article 97(2) be read with Article 98 and besubject to judicial decision. See id. art. 98. Article 101 prohibits extraordinary courts andremoval of any one from the jurisdiction of his lawful judge. See id. art. 101.

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should not be permitted and in no case should such power be with theexecutive. If transfer is permitted at all, it must be in the hands of thejudiciary and must be exercised by a collegial body or at least by more thanone person.

Further, impartiality and freedom from irrelevant pressures must beensured to the judges in all aspects of adjudication. The judges must be andappear to be unbiased and, therefore, should not be members of either theexecutive or the legislature or of political parties or business organizations,and should not participate in political activities. Similarly the judge shouldbe predetermined. The judges must also fairly reflect the society. They shouldgive due deference to the other branches of the government and refrain fromdeciding issues which squarely fall within the exclusive domain of thelegislature or the executive. It is, however, doubtful whether the judgesshould resort to the political questions doctrine to deny access to the courts,particularly in matters of fundamental rights. 7

Judges must also be independent from directives, guidelines, or any kindof pressures from fellow judges. The dominant role of the judges in the matterof appointments and promotions, the hierarchy within the judiciary, and thelack of power to write dissents may also have an adverse impact on theindependence of the judges. Although accountability of the judiciary is adelicate and controversial issue, it goes hand in hand with its independence. 5

IX. CONSTITUTIONAL PROVISIONS AND PRACTICE

A. Constitutional Provisions

The Constitution of India is the fundamental law of the land from whichall other laws derive their authority and with which they must conform. Allpowers of the state and its different organs have their source in it and must beexercised subject to the conditions and limitation laid down in it. Theconstitution provides for the parliamentary form of government which lacksstrict separation between the executive and the legislature but maintains clearseparation between them and the judiciary. The Indian Constitutionspecifically directs the state "to separate the judiciary from the executive in

17. See Shetreet, Judicial Independence, supra note 10, at 636 (supporting the non-involvement of the courts in the political questions). But see BARENDT, supra note 7, at 147(asserting a more active role for courts in deciding political questions).

18. "Accountability and independence are not mutually exclusive; most often we can haveboth." Lubet, supra note 5, at 65; Peter M. Shane, Intrabranch Accountability in State

Government and the Constitutional Requirement of Judicial Independence, 61 LAW &CONTEMP. PROBS. 21,54; see generally Symposium, Judicial Independence andAccountability,61 LAW & CONTEMP. PROBS (Summer 1998) (conducting an in-depth examination of theinterplay between judicial independence and accountability).

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the public services of the State."' 9 The Supreme Court has used this provisionin support of separation between the judiciary and the other two branches ofthe state at all levels, from the lowest court to the Supreme Court.20

Although the nature of the Indian Constitution-whether it is federal orunitary-is doubtful, basically it provides for a federal structure ofgovernment consisting of the Union and the States. The Union and the Stateshave their distinct powers and organs of governance given in the constitution.While the Union and States have separate legislatures and executives, they donot have a separatejudiciary." Thejudiciary has a single pyramidal structurewith the lower or subordinate courts at the bottom, the High Courts in themiddle, and the Supreme Court at the top. For funding and someadministrative purposes, the subordinate courts are subject to regulation by therespective States, but they are basically under the supervision of the HighCourts.2 The High Courts are basically under the regulative powers of theUnion, subject to some involvement of the States in the appointment ofjudgesand other staff and in the finances.2 3 The Supreme Court is exclusively under

19. INDIACONST. art. 50.20. S.C. Advocates-on-Record Ass'n v. Union of India, A.I.R. 1994 S.C. 268 [hereinafter

Second Judges Case]. Seervai takes objection to the application of Article 50 to higherjudiciaryon the ground that thejudges of the Supreme Court and High Courts are not members of publicservices. See SEERVAI, supra note 6, at 2930. While the objection may not appear to bebaseless, the liberal interpretation for a laudable purpose taken by the Court isjustified becausein England, from where India derives much of the understanding of its law, the judiciary at alllevels is treated as part of public service. See STEVENS, THE INDEPENDENCE OF THE JUDICIARY,

supra note 7, at 179, 183-84. Even if Article 50 is confined to the lower or subordinatejudiciary, provisions are made in the constitution to insulate higherjudiciary from the legislatureand the executive. Articles 102 and 191 specifically disqualify members of Parliament and Statelegislatures, respectively, from holding any office of profit under the Government of India orGovernment of any State, which will definitely include the office of a judge of the SupremeCourt or of any High Court. See INDIA CONST. arts. 102, 19 1. Further, under Articles 75 and164 members of the Union and the State executive, respectively, have to be members ofParliament or the State legislature; therefore, they cannot be judges. See id. arts. 75, 164.Again, perhaps with the sole exception of Justice Krishna lyer who was a state legislator from1952-56 and also a legislator and minister in another state from 1957-59 before he wasappointed ajudge of the Kerala High Court in 1968 and later of the Supreme Court in 1973, noother legislator or minister has ever been appointed a judge of a High Court or of the SupremeCourt. It is notable that the constitution makers had rejected the proposal to bar the politiciansfrom being appointed judges of the Supreme Court or of the High Courts. See 4 B. SHIVA RAPET AL., THE FRAMING OF INDIA'S CONSTITUTION 144 (1968).

21. Although the Constitution includes the Supreme Court of India in the part dealingwith the Union (entitled "The Union Judiciary") and includes the High Courts and subordinatecourts in the part dealing with the States which arrangement has also been followed by Seervai,who considers Constitution of India to be federal. See SEERVAJ, supra note 6, at 283. Theconstitution does not make a clear division between the Union and the Statejudiciary as it doeswith respect to the other two organs of the State. No court is designated the Union or the State

court.22. INDIA CONST. arts. 233-35.23. See id. art. 229, sched. VII.

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the regulative powers of the Union.24 Subject to territorial limitations, allcourts are competent to entertain and decide disputes both under the Unionand the State laws.

The unitary character of the judiciary is not an accident but rather aconscious and deliberate act of the constitution makers for whom a singleintegrated judiciary and uniformity of law were essential for the maintenanceof the unity of the country and of uniform standards ofjudicial behavior andindependence.25

1. The Supreme Court

The Supreme Court of India consists of a Chief Justice of India andtwenty-five other Judges.2" The judges are appointed by the President of India"after consultation with such of the Judges of the Supreme Court and of theHigh Courts in the States as the President may deem necessary."" For "theappointment of a Judge other than the Chief Justice, the Chief Justice of India[must] always be consulted.""8 Judges of the Supreme Court, including theChief Justice, hold their offices until the age of sixty-five. They may resignor be removed from office earlier.29 Removal can take place only on thegrounds of proved misbehavior or incapacity of the judge or by an order of thePresident passed after a majority of the total membership and a majority of notless than two-thirds of the members present and voting in each House ofParliament present an address to the President in the same session for suchremoval.3" The only attempt so far to remove ajudge has been unsuccessful."Before entering office judges take an oath, to, among other things, performtheir duties without fear or favor, affection or ill will, and to uphold theconstitution and the laws.32

Only a citizen of India who has been ajudge of one or more High Courtsfor at least five years, or has been an advocate of one or more High Courts forat least ten years, or is a distinguished jurist in the opinion of the President,can be a judge of the Supreme Court.33 Judges of the Supreme Court are

24. See id. art. 146, sched. VII.25. See AUSTIN, supra note 6, at 184-85.26. See INDIA CONST. art. 124, § 1; Act 22 of 1986. Initially the Indian Constitution had

fixed the number of puisne judges at seven.27. Id. art. 124, § 2.28. Id. proviso.29. See id. proviso.30. See id art. 124, §§ 4 -5.31. See Case of Justice V. Ramaswami in 1993. For details see MAHENDRA P. SINGH, V.

N. SHUKLA'S CONSTITUTION OF INDIA 417 (9th ed. 1994). An earlier attempt to remove JusticeJ. C. Shah did not reach Parliament and could not even become public.

32. See INDIA CONST. art. 124, § 6 & sched. III.33. See id. art 124, § 3.

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prohibited from pleading or acting in any court or before any authority in Indiaafter retirement.34 Every judge is entitled to salary and other allowances andprivileges specified in the constitution, subject to upward, but not downward,revision by Parliament. 5 The constitution also makes provisions for theappointment of the acting Chief Justice of India and ad hoc judges, and forattendance of retired judges at the sittings of the Supreme Court. 6

The Supreme Court is a court of record having, among other things, thepower to punish for contempt." It sits in Delhi though it may hold its sittingsat other places." It has incomparably wide original, appellate, and advisoryjurisdictions. The Supreme Court also has the following powers: to reviewits decisions; to make such order as is necessary for doing complete justice inany cause or matter; to enforce its decrees and orders; to order attendance,investigation, and discovery; to transfer cases to itself or from one High Courtto another; and to regulate its practice and procedure.' Parliament mayfurther enlarge thejurisdiction of the Supreme Court and may confer ancillarypowers on it for more effective exercise of itsjurisdiction4 The law declaredby the Court is binding on all courts in India.42 All civil and judicialauthorities are required to act in its aid.43

The judgments and opinions of the Court are given in the open and withthe approval of the majority of judges. The differing judges may writedissenting or separate opinions." Officers and servants of the Court areappointed by the Chief Justice of India and are subject to any law made byParliament, and their service conditions are regulated by the Chief Justice aswell.45 All administrative expenses of the Court, including the salaries,allowances, and pensions of the judges and other staff are charged on theConsolidated Fund of India, free from variation or alteration by Parliament.46

34. See id. § 7.35. See id. art. 125 & sched. 11; Supreme Court Judges (Conditions of Service) Act, 1958.

Article 125 had to be amended by the Constitutional (54th Amendment) Act, 1986 because theoriginal Article 125 did not provide for upward revision of salary. During a financial emergencythe salaries of the judges may, however, be reduced. See INDIA CONST. art. 360, § 4(b).

36. See INDIA CONST. arts. 126, 128.37. See id. art. 129.38. See id. art. 130.39. See id. arts. 32, 131-36, 143.40. See id. arts. 137, 139A, 142, 145.41. See id. arts. 138-140.42. See id. art. 141.43. See id. art. 144.44. See id. art. 145, §§ 4-5.45. See id. art. 166, §§ 1-2.46. See id. arts. 112, § 3(d)(i), 146, § 3.

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Parliament and State legislatures are prohibited from any discussion withrespect to the conduct of any judges of the Supreme Court or of a High Courtin the discharge of their duties. 7

2. The High Courts

The constitution provides for a High Court for each State, thoughParliament is also authorized to establish a common High Court for two ormore States or for two or more States and a Union Territory." Every HighCourt is a court of record with power to punish for contempt.4" The HighCourts consist of a Chief Justice and such other judges as the President mayfrom time to time deem it necessary to appoint.5" High Court judges areappointed by the President after consultation with the Chief Justice of India,the Governor of the State, and the Chief Justice of the High Court.' Unlessjudges resign or are removed or appointed to the Supreme Court, they holdoffice until the age of sixty-two. 2 They hold office during good behavior andcan be removed only in the same manner as a judge of the Supreme Court. 3

Only a citizen of India who has held a judicial office for at least ten years orwho has been an advocate for ten years can be appointed a judge.54 Everyjudge of the High Court takes a similar oath as ajudge of the Supreme Court.55

High Court judges are prohibited from pleading or acting in any court orbefore any authority except the Supreme Court or a High Court in which theyhave not served. 6 The salaries, allowances, and other rights and privileges ofthe High Court judges are also specified in the constitution and are subject toonly upward variation by Parliament." The constitution also provides for theappointment of an acting Chief Justice, additional and acting judges, andretired judges at sittings of High Courts."8

47. See id. art. 121.48. See id. arts. 214, 231.49. See id. art. 215.50. See id. art. 216.51. See id. art. 217(1).52. See id. art. 217(1) & proviso. The age of retirement was raised from 60 to 62 years

by the Constitutional (15th Amendment) Act, 1963.53. See INDIA CONST. proviso & art. 218.54. See id. art. 217, § 2.55. See id. art. 219.56. See id. art. 220.57. See id. art. 221. Amended by the Constitutional (54th Amendment) Act, 1986 to

provide for upward revision.58. See INDIA CONST. arts. 223-224A. Article 224, providing for additional and acting

judges, was introduced by the Constitutional (7th Amendment) Act, 1956 and the Constitution(I 5th Amendment) Act, 1963.

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High Courtjudges may be transferred from one High Court to another.59

The High Courts have wide original and appellate jurisdiction, including thejurisdiction to issue writs for the enforcement of the Fundamental Rights andfor any other purpose.6 0 Every High Court has power of superintendence overall courts and tribunals within its territorial jurisdiction"' and of withdrawalof cases involving substantial questions of law relating to the interpretation ofthe constitution.62 The Chief Justice of the High Court appoints officers andservants of the High Court and regulates their services.63 The administrativeexpenses of the High Court, including the salaries and other allowances of thejudges and other staff are charged on the Consolidated Fund of that State.'

3. The Subordinate Courts

The highest subordinate court is the court of the district judge. TheGovernor of a State, in consultation with the High Court of that State, appointsthe district judges.65 Only a person who is either already in the legal serviceof the Union or of the State or has been an advocate for at least seven yearsand is recommended by the High Court can be appointed a district judge.66

Appointments to judicial service of the State below the rank of district judgeare made by the Governor in accordance with the rules made after consultationwith the State Public Service Commission and the High Court.6 7 The controlof district courts and courts below them, including the posting, promotion, andgrant of leave to members of the judicial service vests in the High Court. TheGovernor of a State may apply these provisions even to the magistrates in thatState.68

59. See INDIA CONST. art. 222.60. See id. arts. 225-26.61. See id. art. 227.62. See id. art. 228.63. See id. art. 229.64. See id. arts. 202 (3) (d), 229(3).65. See id. art. 233(1).66. See id. art. 233(2).67. See id. art. 234.68. See id. art. 237. Then there are some supplemental provisions such as Article 39A

which requires the State to "secure that the operation of the legal system promotes justice, ona basis of equal opportunity, and ... to ensure that opportunities for securing justice are notdenied to any citizen by reason of economic or other disabilities." Id. art. 39A. For examplesof similar supplemental provisions, see also id. art 312 (outlining all India judicial service); id.arts. 323A-323B (providing for certain tribunals which to some extent derogate with the powersof the ordinary courts); id. sched. II (discussing the salaries, allowances, and other privilegesof the Supreme Court and High Court judges). The Supreme Court has invalidated theconstitutional amendment which introduced Articles 323A and 323B to the extent it excludesthe jurisdiction of the High Courts under Article 226 over the tribunals. See Chandra Kumarv. Union of India, A.I.R. 1997 S.C. 1125.

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B. Constitutional Practice

The constitutional provisions summarized above appear to be the mostexhaustive in any constitution. The Indian Constitution makers believed thatthey had done everything to secure the independence of the judiciary andhoped that those who had to work with the constitution would make itsoperation successful.69 Their hopes have not been belied but the course hasnot always been easy. As will be noted, some of the difficulties arose soonafter the commencement of the constitution while others have arisen later.Some of them have been resolved amicably and, hopefully, for good, butothers persist. Noteworthy, however, is that the above constitutional schemehas stood the test of time and survived without any significant changes.7°

The constitution assumes judicial review of legislative and executiveacts and, therefore, from the initial litigation soon after the commencementof the constitution the courts started exercising it without anybodyentertaining any doubts in this regard.7' At the same time, from the verybeginning invalidation of legislative and executive acts by the courts in somematters, particularly in matters of property expropriation, was not viewedsympathetically by the government.72 Therefore, the constitution wasfrequently amended in its early stages.73 This process was not healthy for the

69. See supra text accompanying note 1 for Dr. Rajendra Prasad's perspective. Dr.Prasad continued:

We have prepared a democratic Constitution. But successful working ofdemocratic institutions requires in those who have to work there willingness torespect the viewpoints of others, capacity for compromise and accommodation.Many things, which cannot be written in a Constitution are done by convention.Let me hope that we shall show those capacities and develop those conventions.

Prasad, supra note 1.70. The only aberration in this scheme brought by the controversial constitution, the 42d

amendment during the emergency in 1976 that curtailed powers of the Supreme Court and theHigh Courts, was quickly removed by the constitution's 43d and 44th amendments in 1978.The other amendments in these provisions have rectified the situations not envisaged by theconstitution makers, such as the conferment of power on Parliament for upward revision of thesalaries of the Supreme Court and High Court Judges; restrictions on, as a matter of right,appeals to the Supreme Court; provision for the appointment of additional and acting judges inthe High Court and raising of the age of retirement in High Courts from 60 to 62 years;provision for compensatory allowance to High Court Judges on transfer from one High Courtto another, which in a way further strengthened the position of the judiciary to face the workload as well as to facilitate appointment of competent persons. Some incidental amendmentswere made on the reorganization of the States in 1956.

71. See A.K. Gopalan v. State of Madras, A.I.R. 1950 S.C. 27; Kameshwar Singh v. StateofBihar, A.I.R. 1951 Pat. 91.

72. See Kameshwar Singh, A.I.R. 1951 Pat. 91; State of Madras v. ChampakamDorairajan, A.I.R. 1951 S.C. 226.

73. See Constitution (1st Amendment) Act (1951) and subsequent amendments,particularly Article 31, since repealed. See INDIA CONST. art. 31. For the history of theseamendments, see Singh, supra note 3 1, at 235.

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independence of the judiciary because any of its decisions that wereinconvenient to the government of the day could be easily overruled byconstitutional amendment. In 1967 the Supreme Court restricted this trend bydeciding that no amendment of the constitution could be made in the futurewhich abridged or restricted the Fundamental Rights.74 Later, in 1973, theCourt overruled this decision and upheld the amendments abrogating it, butthe Court laid down a much broader restriction on the power of amendmentthat the basic structure of the constitution could not be amended.75 Thiscontinues to be the law and has been applied several times to invalidateamendments to the constitution. 6 The independence of the judiciary andjudicial review.have been held part of the basic structure or basic features ofthe Indian Constitution and, therefore, amendments which directly or evenindirectly take away these features have been invalidated by the Court.77 TheCourt has also invalidated a constitutional amendment which subjected thedecision of a tribunal, which was not a court in the strict sense, toconfirmation or rejection by the government.78 Similarly, laws merelyabrogating ajudicial decision without retrospectively changing the legal basisof that decision have also been invalidated.79 The courts have also expandedthe scope ofjudicial review by liberalizing the requirement of locus standi anddeveloping the concept of public interest litigation and by rejecting theconcept of political questions.80

Through public interest and other litigation the courts have beenliberally expanding their jurisdiction to enforce the Fundamental and otherrights through suitable and effective remedies. The courts have also createdor recognized new rights for the common people, especially for the poor,oppressed, and neglected, a fact which has earned respect for the courts from

74. Golak Nath v. State of Punjab, A.I.R. 1967 S.C. 1643.75. Kesavananda Bharati v. State of Kerala, A.I.R. 1973 S.C. 1461. On this see, Dieter

Conrad, Limitation of Amendment Procedures and the Constituent Power, 15-16 IndianYearbook of International Affairs, 375 (1966-67); Constituent Power, Amendment and BasicStructure of the Constitution: A Critical Reconsideration, 6-7 DELHI L. REv. 1 (1977-78);Basic Structure of the Constitution and Constitutional Principles, 3 LAW AND JUSTICE, 99(1996) reprinted in DIETER CONRAD, ZWISCHEN DEN TRADITIONEN: PROBLEME DESVERVASSUNGSRECHTS UND DER RECHTSKULTUR IN INDIEN UND PAKISTAN (Jirgen Luett &Mahendra P. Singh, eds., 1999).

76. See L. Chandra Kumar v. Union of India, A.I.R. 1997 S.C. 1125; Kihoto Hollohanv. Zachilhu, A.I.R. 1993 S.C. 412; P. Sambhamurthy v. State of Andhra Pradesh, A.I.R. 1987S.C. 663; Minerva Mills Ltd. v. Union of India, A.I.R. 1980 S.C. 1789; Indira Nehru Gandhiv. Raj Narain, A.I.R. 1975 S.C. 2299.

77. See L. Chandra Kumar, A.I.R. 1997 S.C. at 1125; see also S.C. Advocates on RecordAss'n v. Union of India, A.I.R. 1994 S.C. 268; S.P. Gupta v. Union of India, A.I.R. 1982 S.C.149.

78. See P. Sambhamurthy v. State of Andhra Pradesh, A.I.R. 1987 S.C. 663.79. See, e.g., In the matter of Cauvery Water Disputes Tribunal, A.I.R. 1992 S.C. 522.80. See S. P. Gupta v. Union of India, A.I.R. 1982 S.C. 149; State of Rajasthan v. Union

of India, A.I.R. 1977 S.C. 1361.

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a wide section of Indian society."' The Supreme Court has also expanded itsjurisdiction in undefined areas, such as its power to do "complete justice inany cause or matter pending before it." 2 The courts have denied the claim ofact of state to the government vis-A-vis the citizens 3 and have subjected thepower of pardon to judicial review."

Judicial tenure stands on sound footing, and the only attempt to removea Supreme Courtjudge against whom charges of corruption had been provedby a committee ofjudges failed.8" Low salary and allowances ofjudges havebeen an issue because sometimes the best persons have not been available forthe office of judge and sometimes even those who were appointed laterresigned from it. From time to time, salaries have, however, been revised andeven the constitution has been amended once to improve the situation. 6 Nowsalaries are considered to be at the satisfactory level with every possibility ofupward revision. 7 Parliament and State legislatures abstain from discussingjudicial behavior, though sometimes it is doubted whether the courts alsoshow similar deference to the legislators in the exercise of their functions.8

From the very beginning governments have also shown due concern forthe judiciary. As early as 1955 the Union government instituted the LawCommission to review the system ofjudicial administration in all its aspectsand to suggest ways and means for improving it and making it speedy and lessexpensive. In 1958 the Commission produced its famous Fourteenth Reportwith a comprehensive study of all courts, from the lowest to the SupremeCourt, and with wide-ranging recommendations for ensuring theindependence, efficiency, and efficacy of the judiciary at all levels.8 9 Since

81. See Bandhua Mukti Morcha v. Union of India, A.I.R. 1984 S. C. 812; Nilbati Behrav. State of Orissa, A.I.R. 1993 S.C. 1960; M. C. Mehta v. Union of India, A.I.R. 1987 S.C.1086; Rudul Sah v. State of Bihar, A.I.R. 1983 S.C. 1086.

82. INDIA CONST. art. 142. For cases interpreting Article 142, see State of Punjab v.Bakshish Singh, (1998) 8 S.C.C. 222; Supreme Court Bar Ass'n v. Union of India, (1998) 4S.C.C. 409; Vishaka v. State of Rajasthan, (1997) 6 S.C.C. 241; Delhi Judicial Service Ass'nv. State of Gujarat, (1991) 4 S.C.C. 406; Union Carbide Corp. v. Union of India, (1991) 4S.CC. 584.

83. See Jahangir M. Cursetji v. Secretary of State for India, 6 Born. I.L.R. 131 (1904).84. See Kehar Singh v. Union of India, A.I.R. 1989 S.C. 653, 661.85. See Singh, supra note 31, at 417. An effort seems to have been made earlier to

impeach Justice J. S. Shah, but the effort never reached Parliament. See N. K. Palkhivala,Judiciary in Turmoil: Public Confidence Rudely Shaken, 26 CIV. & MIL. L.J, 176, 178 (1990).

86. See Constitution (54th Amendment) Act (1986); INDIA CONST. arts. 125, 22 1.87. See Supreme Court Judges (Conditions of Service) Act (1958).88. See the controversies over the courts and legislative privileges under Articles 105 &

194 and particularly, Special Reference No. I of 1964, A.I.R. 1965 S.C. 745. See also P. V.Narsimha Rao v. State, (1998) 4 S.C.C. 626; Judges (Protection) Act, 1985 and the JudicialOfficers Protection Act, 1985; P. C. Rao, Use and Abuse of the Indian Constitution, 58ZEITSCHRIFT FOR AUSLANDISCHES OFFENTLICHES RECIT UND VOLKERRECHT 799, 806 (1998).

89. See LAW COMMISSION OF INDIA, FOURTEENTH REPORT: REFORMS OF JUDICIALADMINISTRATION (1958).

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then the exercise has been repeated several times concerning different aspectsof administration ofjustice, including in particular appointment ofjudges andarrears in courts.9" Unfortunately, not many of the results of these exerciseshave been put into practice.

The independence of the lower judiciary or subordinate courts has alsobeen honored and strengthened. The lowerjudiciary has been separated fromthe executive almost all over the country and operates under administrativesupervision of the High Court to which it is subordinate. Its supervision andcontrol by the High Court vis-a-vis the executive has been expanded byholding that the district judges shall be appointed by the Governor of a stateonly from amongst the members of the judiciary and not from amongst thejudicial officers who are part of the executive, and that they shall always beappointed only in consultation with the High Court and with no other body orauthority.9' Similarly, disciplinary action against the members of the lowerjudiciary, such as suspension and removal from job and matters such as interse seniority are determined and decided by the High Court. Through a notableruling the independence of the lower judiciary has been substantially securedand enhanced by the Supreme Court. It has held that for purposes of theirservice conditions that the members of the judiciary, even at the lowest level,are comparable to the members of the other two branches of the government,namely, the legislative and the executive, and not to the civil servants oradministrative staff of the government. Emphasizing the importance of theindependence of the judiciary and its uniform service condition, the Courtdirected the Union of India and the States to take steps for the creation of anall India judicial service; to prescribe minimum qualifications for recruitmentto the lowerjudiciary with the assistance of the High Court; to fix the uniformage of retirement at sixty; to provide for payment of a library allowance,provision for conveyance or conveyance allowance, provision for suitableresidential accommodation, uniform and better service conditions, andprovision for training ofjudges.92 In any case the salaries and allowances of

90. See, e.g., Report of the Study Team of the Administrative Reforms Commission onCentre-State Relations (1967); Administrative Reforms Commission Report (1969); HighCourts Arrears Committee Report (1972); LAW COMMISSION OF INDIA: FIFTY-EIGHTH REPORT(1974); SEVENTY-SEVENTH REPORT (1978); SEVENTY-NINTH REPORT (1979); EIGHTIETHREPORT (1979); ONE HUNDRED-TWENTIETH-ONE HUNDRED TWENTY-SEVENTH REPORT (1987-1988).

91. See State of Kerala v. Lakshmikutty, A.I.R. 1987 S.C. 331; M.M. Gupta v. State ofJ&K, A.I.R. 1982 S.C. 1579; Chandra Mohan v. State of U.P., A.I.R. 1966 S.C. 1987.Government Counsel, who are also advocates, are, however, not disqualified for appointment.See Sushma Suri v. Govt. of National Capital Territory of Delhi, (1999) 1 S.C.C. 330; HighCourt ofRajasthan v. Ramesh Chand Paliwal, A.I.R. 1998 S.C. 1079. See also B. Sekar Hegde,Independence of the Judiciary and the Supreme Court, 9 J. INDIAN L. INST. 638 (1967).

92. All India Judges' Ass'n v. Union of India, A.I.R. 1992 S.C. 165; All India Judges'Ass'n v. Union of India, A.I.R. 1993 S.C. 2493.

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the members are increased from time to time with the increase of salaries andallowances of other civil servants. To protect the honor of the lower courtsthe Supreme Court has also extended its contempt power to cover thecontempt of the lowest court.93

From this description one, however, should not be led to form a rosypicture of the Indian judiciary all through and all over. The judiciary has beenfacing several serious problems, some of which have been indicated towardsthe end of this Article. But apart from those problems which are an indirectthreat to the independence of the judiciary, a direct threat to it has been on theissues of appointment of the Supreme Court and High Court judges and thetransfer of the latter from one High Court to another. These two issues havebeen persistently in the forefront of the debate on the independence of thejudiciary. The following discussion concentrates on that debate.

Ill. CONTENTIOUS ISSUES: APPOINTMENT AND TRANSFER OF JUDGES

A. The Background

Appointment of judges to the higher judiciary has been the mostrecurrent theme in the history of the judiciary since independence and in theimmediately preceding years. In view of the fact that before independence theBritish Crown, uninfluenced by the domestic politics, appointed judges to thehigher judiciary, its exclusive discretion in such appointments was notquestioned.94 With independence it was apprehended that the situation wouldchange, requiring remedial measures. Therefore, in 1945 the SapruCommittee recommended in its constitutional proposals that the "justices ofthe Supreme Court and the High Courts should be appointed by the head ofstate in consultation with the Chief Justice of the Supreme Court and, in thecase of High Court judges, in consultation additionally with the High CourtChief Justice and the head of the unit concerned."9'5 Soon after the ConstituentAssembly started the process of constitution making at the beginning of 1947,the Ad Hoc Committee of the Union Constitution Committee of theConstituent Assembly, which was assigned the task of formulating theproposals on the Supreme Court, reported that it did not think it "expedient to

93. See Income Tax Appellate Tribunal v. V. K. Aggarwal, (1999) I S.C.C. 16; In reVinay Chandra Mishra, (1995) 2 S.C.C. 584; Delhi Judicial Service Ass'n v. State of Gujarat,(1991) 4 S.C.C 406.

94. See sections 200 and 220 of the Government of India Act (1935). However, there isa reference to a convention that such appointments were also made after referring the matter tothe Chief Justice of India and obtaining his concurrence. Memorandum Representing the Viewsof the Federal Court and of the Chief Justices of the High Courts, in 4 B. SHtVA RAO ET AL.,supra note 20, at 196. See also SEERVAI, supra note 6, at 2956.

95. AUSTIN, supra note 6, at 176. For the text of the Committee Report see T. B.SAPRUET.AL., CONSTITUTIONAL PROPOSALS OF THE SAPRU COMMITTEE (2d ed. 1946).

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leave the power of appointing judges ... to the unfettered discretion of thePresident" and recommended two alternative methods. One of these methodsauthorized the President to nominate a person for appointment of a judge ofthe Supreme Court, other than the Chief Justice, in consultation with the ChiefJustice. The nomination was to be confirmed by a panel of seven to elevenmembers comprising Chief Justices of High Courts, members of Parliament,and law officers of the Union. The other method was that the President wouldappoint in consultation with the Chief Justice one of the three personsrecommended by the above panel of eleven. The same procedure was to befollowed for the appointment of the Chief Justice except that the Chief Justicewas not to be consulted.96

In his memorandum on the Union Constitution, submitted a few dayslater, Sir B. N. Rau, the Constitutional Advisor, agreeing in principle,suggested that the appointment of judges should be made by the Presidentwith the approval of at least two-thirds of the Council of State which wasproposed to advise the President in the exercise of the President'sdiscretionary powers and of which the Chief Justice of the Supreme Court wasan ex-officio member.97 The Union Constitution Committee also did not agreewith the Ad Hoc Committee and recommended that "a judge of the SupremeCourt shall be appointed by the President after consulting the Chief Justiceand such other judges of the Supreme Court as also such judges of the HighCourts as may be necessary for the purpose."9 8 The Provincial ConstitutionCommittee made a similar recommendation for the appointment ofj udges ofthe High Courts: "[J]udges should be appointed by the President inconsultation with the Chief Justice of the Supreme Court, the Governor of theProvince and the Chief Justice of the High Court of the Province (except whenthe Chief Justice of the High Court himself is to be appointed)." 99 In theAssembly the Chairman of the Committee stressed that the Committee hadpaid special attention to the appointment of'judges of the High Courts whichit considered "very important" for keeping the judiciary above "suspicion" and"party influences."" With incidental changes, these recommendations on theappointment of the Supreme Court and the High Court judges were

96. 2 B. SHJVA RAO ET AL., supra note 20, at 590 (1967).97. See B. N. RAu, INDIA'S CONSTITuTION IN THE MAKING 72, 86 (1960). The report of

the committee was submitted on May 21, 1947, while Rau's Memorandum was submitted onMay 30, 1947. See id.

98. 2 B. SHIVA RAO ET AL., supra note 20, at 600.99. Id at 662.

100. Id. at 666.

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incorporated in the Draft Constitution prepared by the ConstitutionalAdvisor.'0 ' The recommendations were adopted as such in the DraftConstitution prepared by the Drafting Committee of the Assembly.0 2

The first reaction to these provisions came from the then Chief Justiceof the Federal Court, Justice H. J. Kania, who confined his comments to theindependence of thejudiciary from the executive and particularly emphasizedthat in the appointment of High Court judges "the Governor and the HighCourt Chief Justice should be in direct contact so that the provincial HomeMinistry would not be an intermediary in the proceedings."'0 3 Chief JusticeKania thought that exclusion of influence of local politics in the selection ofjudges was necessary for the independence of the judiciary. Later, in ameeting of the judges of the Federal Court and the Chief Justices of the HighCourts, the provisions of the Draft Constitution on the judiciary werethoroughly examined and a memorandum was prepared." Emphasizing theimportance of the independence of the judiciary, the memorandum expressedconcern over the "political, communal and party considerations" in theappointment of High Court judges since independence"' and thereforesuggested an amendment to the relevant provision under which the Presidentshall appoint a High Courtjudge "on the recommendation of the Chief Justiceof the High Court after consultation with the Governor of the State and withthe concurrence of the Chief Justice of India."'" Such amendment, it wasexpected, would exclude provincial executive interference in the appointmentof judges. The memorandum stated that it should also apply "mutatismutandis to the appointment of the judges of the Supreme Court" andrecommended dropping the words from the relevant draft article whichobliged the President to consult the judges of the Supreme Court and HighCourts in addition to the Chief Justice of India in the appointment of judgesof the Supreme Court.0 7 The memorandum also suggested inclusion of aprovision disqualifying a person from becoming ajudge of the Supreme Courtor of a High Court if such person had held the post of a minister either at the

101. 3 B. SHIVA RAO ET AL., supra note 20, at 36, 67 (1967). The Draft was prepared onthe instructions of the Constituent Assembly and was based on the recommendations of variouscommittees appointed by the Assembly and accepted by it. This Draft became the basis of theDraft Constitution prepared by the Drafting Committee of the Constituent Assembly that waschaired by Dr. B. R. Ambedkar.

102. See id. at 554, 584. The Draft Constitution was submitted to the President of theAssembly on February 21, 1948.

103. AUSTIN, supra note 6, at 179-80.104. See 4 B. SHIVA RAO ET AL, supra note 20, at 193.105. Independence came on August 15, 1947 and the meeting was held on May 26-27,

1948. So, within about six months improper executive conduct, which had been absent untilthen, could be felt.

106. 4 B. SHIVA RAO ET AL., supra note 20, at 195 (emphasis added).107. See id. at 196.

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Centre or in any State.' Similar suggestions on the Draft Constitution werereceived from other quarters but none of them was found convincing enoughby the Drafting Committee for introducing any change in the DraftConstitution."° The changes suggested in the memorandum were notaccepted, respectively, for the reasons that they did not provide for thecontingency of difference of opinion between the Chief Justice of India andthe Chief Justice of the High Court that wider consultation was obligatory tominimize the chances of improper appointments and that merit was the onlyconsideration for the appointment ofjudges and, therefore, no constitutionalban should stand in the way of merit being recognized." 0

The Drafting Committee itself had, however, decided to move anamendment replacing the existing procedure for the appointment of theSupreme Court and High Court judges by one provided in the proposedInstrument of Instructions to be issued to the President. The Instrumentcontemplated appointment of Supreme Court judges by the President on theadvice of an Advisory Board consisting of not less than fifteen members ofParliament. The advice of the Board was to be sought in respect of proposedappointees selected by the President after consultation with all the judges ofthe Supreme Court and the Chief Justices of the High Courts. In the case ofappointment of the Chief Justice of India, the Chief Justice of India was notto be consulted. In the case of appointment of High Court judges, thePresident had to consult the Chief Justice of India, the Chief Justice of theHigh Court (except in the case of appointment of Chief Justice of High Court),and the Governor of the State. The President was not bound by the advice ofthe Board but in that case he had to place a memorandum before Parliamentwith reasons for not accepting the advice."' As the proposal for theInstrument of Instructions was later dropped, the Drafting Committee did notmove the amendment and proceeded with the existing provisions.

In the Assembly basically two issues were raised and discussed on theappointment of judges. Some members proposed that the judges, other thanthe Chief Justice of India, must be appointed by the President with theconcurrence of the Chief Justice of India, while some others proposedapproval of Parliament or of its Upper House, the Council of states. Agreeingthat the issues were of "greatest importance" and that the Assembly wasunanimous that the judiciary must both be "independent of the executive" and"competent in itself," Dr. Ambedkar referred to the practice of appointmentofjudges in England, where they are appointed by the executive alone, and in

108. See id. at 203.109. See id. at 143 (requiring consultation with all judges of the Supreme Court and

exclusion of consultation with High Courtjudges in the appointment of Supreme Courtjudges);see id. at 168 (requiring exclusion of the Governor in the appointment of High Court judges).

110. See id. at 144,166.11I. See id. at 491,499.

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IND. INT'L & COMp. L. REV.

the United States, where they are appointed by the executive on the approvalof the Senate. Dr. Ambedkar concluded:

It seems to me, in the circumstances in which we live today,where the sense of responsibility has not grown to the sameextent to which we find it in the United States [sic], it wouldbe dangerous to leave the appointments to be made by thePresident, without any kind of reservation or limitation, thatis to say, merely on the advice of the executive of the day.Similarly, it seems to me that to make every appointmentwhich the executive wishes to make subject to theconcurrence of the Legislature is also not a very suitableprovision. Apart from its being cumbersome, it also involvesthe possibility of the appointment being influenced bypolitical pressure and political considerations. The draftarticle, therefore, steers a middle course. It does not makethe President the supreme and the absolute authority in thematter of making appointments. It does not also import theinfluence of the Legislature ....

With regard to the question of the concurrence of theChief Justice, it seems to me that those who advocate thatproposition seem to rely implicitly both on the impartiality ofthe Chief Justice and the soundness of his judgment. Ipersonally feel no doubt that the Chief Justice is a veryeminent person. But after all, the Chief Justice is a man withall the failings, all the sentiments and all the prejudices whichwe as common people have; and I think, to allow the ChiefJustice practically a veto upon the appointment of judges isreally to transfer the authority to the Chief Justice which weare not prepared to vest in the President or the Governmentof the day. I therefore, think that that is also a dangerousproposition." 2

The proposed amendments on the aforesaid two lines were, therefore,rejected by the Assembly." 3

112. 3 CONSTTrUENT ASSEMBLY DEBATES, supra note 1, at 258.113. See id. at 260. With respect to the High Courts see id. at 674.

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B. The Beginning of the Controversies

Although no public controversies were raised for quite some time on theappointment of judges to the Supreme Court and the High Courts,dissatisfaction in this regard was expressed from almost the very beginning.Scholars have already noted the dissatisfaction expressed by the judges on theappointment of High Court judges within six months of independence undera procedure which was definitely different from the procedure provided underthe constitution."4 But within less than nine years of the commencement ofthe Indian Constitution greater dissatisfaction was expressed by the LawCommission of India with respect to the appointment of judges both to theSupreme Court as well as to the High Courts."' In respect of the High Courts,the Commission even recommended an amendment of the constitution exactlyalong the lines recommended by the judges in the Draft Constitution. "6

The controversy seems to have arisen in another form even earlier whenafter the death of the first Chief Justice of India, the Union executive intendednot to appoint the senior most puisne judge as the Chief Justice of India. It issaid that the executive had to give up its plan because all the then judges ofthe Supreme Court threatened to resign en block if the executive did notappoint the senior most puisne judge as Chief Justice of India. Thecontroversy did not become public because the senior most puisne judge wasappointed the Chief Justice of India. "' A similar situation arose and avertedalmost unnoticed in 1971 with respect to the appointment of the Chief Justiceof India."1 Earlier, in 1967 a Study Team on Centre-State Relations of theAdministrative Reforms Commission reiterated the dissatisfaction expressedby the Law Commission in 1958 with respect to the appointment of thejudges, particularly in the High Courts.

The appointment of judges became a public issue in April 1973 when,in breach of an established convention, instead of appointing the senior mostpuisne judge of the Supreme Court, its Chief Justice on the retirement of thethen Chief Justice, the Union executive appointed the fourth most seniorjudgeas Chief Justice, superseding his three senior colleagues. 2 ' The three

114. See also reference to a 1947 letter by the Chief Justice of the Madras High Court inLAW COMMISSION OF INDIA, EIGHTIETH REPORT, supra note 90, at 18.

115. See LAW COMMISSION OF INDIA, FOURTEENTH REPORT, supra note 89, at 33, 69.116. See id. at 106.117. See LAW COMMISSION OF INDIA, ONE HUNDRED TWENTY-FIRST REPORT, supra note

90, at 4. Chief Justice Kania died in November 1951 and the senior most puisne judge wasJustice Patanjali Shastri.

118. See M. Hidayatullah, Unjustified Departurefrom Settled Convention, in A JUDICIARYMADE TO MEASURE 10 (N. A. Palkhivala ed., 1973). It concerned the appointment of JusticeJ. C. Shah on the retirement of Chief Justice Hidayatullah. See id.

119. See LAW COMMISSION OF INDIA, EIGHTIETH REPORT, supra note 90, at 19.120. The supersession took place on the retirement of Chief Justice S. M. Sikri on April

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superseded judges resigned in protest. An intense public debate followed inwhich critics of executive action saw a clear design of undermining theindependence of the judiciary while the supporters of the action defended itbroadly on the ground of national need of a committed judiciary."2' Hardlyhad the debate subsided when in the appointment of the next Chief Justiceagain the senior mostjudge was superseded in favor of the next most senior. '22

Again, the superseded judge resigned in protest. On both occasionsapparently the superseded judges had given judgments inconvenient to theexecutive while the superseding judges had givenjudgements palatable to theexecutive." 3 This established a clear nexus between the independence of thejudges and their appointment. Before the appointment of the next ChiefJustice in 1978, in 1977 the Union Government changed. It referred thematter of appointment of the Chief Justice to the Law Commission of India.The Law Commission recommended that in the matter of appointment of theChief Justice the convention of appointing the senior most judge should befollowed.'24 Accordingly, the senior most puisne judge was appointed thenext Chief Justice. Since then the practice is being followed withoutexception. The Commission also thoroughly examined the constitutionalprovisions, procedure, and practice for the appointment of judges in theSupreme Court and the High Courts. While it found the constitutional schemefor the appointment ofjudges "basically sound," it admitted several flaws inits operation and made several recommendations for ensuring the best andmost expeditious appointments with more effective consultative process andelimination of political influence. In short, the Commission recommended adecisive role to the judiciary in the matter of appointments and transfers ofjudges through a collegial decision making process.

IV. JUDICIAL INTERVENTION

A. Justice Sheth 's Case

A little after the first supersession under the same government, anotherthreat to the independence of the judiciary was wielded through the mass

26, 1973. The superseded judges were Justices J. M. Shelat, K. S. Hegde, and A. N. Grover.Justice A. N. Ray was appointed Chief Justice.

121. For the contemporary literature on the debate see SEERVAI, supra note 6, at 2405 n.57.See also A. R. ANTULAY, APPOINTMENT OF A CHIEF JUSTICE (1973).

122. Justice M. H. Beg was appointed, superseding Justice H. R. Khanna.123. On the first occasion the superseded judges, among other things, had decided that the

basic structure of the constitution is unamendable. See Kesavananda Bharati v. State of Kerala,A.I.R. 1973 S.C. 1461. On the second occasion the Court held that suspension of Fundamental

Rights during emergencies did not prevent the courts from examining the legality of a detention.See A.D.M. Jabalpur v. Shivakanta Shukla, A.I.R. 1976 S.C. 1207 (Khanna, J., dissenting).

124. See LAW COMMISSION OF INDIA, EIGHTIETH REPORT, supra note 90, at 3.

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transfer of High Court judges, again apparently for the reason that thesejudges gave judgements inconvenient to the government during the internalemergency of 1975-77. These transfers brought the matter to the courts. Oneof the judges-Justice S. H. Sheth-who was transferred from the GujaratHigh Court to the Andhra Pradesh High Court, challenged, among otherthings, the constitutionality of his transfer in the Gujarat High Court, on thegrounds that it was without his consent and without consultation between thePresident and the Chief Justice of India.'25 The petition was allowed on thelatter ground. One of the judges also allowed it on the former ground but themajority of two rejected. An appeal in the Supreme Court was disposed of inaccordance with an assurance by the Union of India to withdraw thetransfer.'26 However, a majority of three judges in the Supreme Court refusedto accept consent of the transferred judge as a condition precedent for transferand emphasized that transfers must be in the public interest and not aspunishment. One judge found that consent was a necessary condition, whilethe fifth one held that transfer was a new appointment and, therefore, consentwas necessary. The important point to be noted is that all the judges, both inthe High Court as well as in the Supreme Court, unanimously proceeded onthe assumption that the independence of the judiciary is a basic feature of theIndian Constitution and therefore the judiciary must be immune from theinfluence of the executive.

B. The Judges Case

For the second time the matter came before the Supreme Court in S. P.Gupta v. Union of India,127 known as the Judges Case. In that case severalwrit petitions filed in different High Courts were disposed of by a bench ofseven judges of the Supreme Court. Some of these petitions challenged thevalidity of a circular letter of the Union Law Minister addressed to the ChiefMinisters of the States that asked them to obtain advance consent from theproposed appointees to the High Courts for transfer to other High Courts.This was sought "to further national integration and to combat narrowparochial tendencies bred by caste, kinship and other local links andaffiliations."'28 Some petitions challenged the validity of the practice ofappointing additional judges and of not appointing the named additionaljudges to the permanent positions even though permanent vacancies existed.Other petitions challenged the validity of certain transfers ofjudges from oneHigh Court to another. The petitions were decided by a divided Court in

125. See S. H. Sheth v. Union of India, 1976 17 G.L.R. 1017.126. See Union of India v. S. H. Sheth, A.I.R. 1977 S.C. 2328.127. S. P. Gupta v. Union of India, A.I.R. 1982 S.C. 149.128. For the text of the letter, see id. at 178.

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which every judge wrote a separate opinion. These opinions together set therecord of being the longest in any single matter decided by the Court in itshistory. It is not necessary to examine these opinions particularly for thereason that in its material respects the Judges Case has been overruled.Mention of its most salient aspects is, however, instructive."'29

The most relevant aspect of the case was the acknowledgment andreiteration of independence of the judiciary as a basic feature of the IndianConstitution. Otherwise the petitions were dismissed by the majority. Thecircular letter of the minister was upheld by a majority of four to three, butalmost all judges agreed that transfer from one High Court to another couldbe made only in the public interest and not by way of punishment. Except forJustice Bhagwati, no other judge considered the consent of the concernedjudge as a condition precedent for transfer. Appointment of additional judgeswas generally suspected as having the potential of infraction of judicialindependence, but its bona fide application in accordance with theconstitutional conditions was appreciated. Normally, an additionalj udge mustbe made permanent after the expiration of that judge's term as additionaljudge if a permanent vacancy existed in the High Court but the judge did nothave a right to be so appointed. Similarly, the Court generally agreed that ifthe amount of work was consistently increasing in the High Courts, thenumber of permanent posts of the judges must proportionately be increased.Except for one judge, the rest of the Court found itself unable to issue anydirection to the executive in this regard. Last, on the question of appointmentof the judges, the Court reiterated its Sankalchand position that there must beeffective consultation between all the constitutional functionaries. But themajority did not agree that the Chief Justice of India had any primacy or vetoin this regard. The majority rather gave primacy to the executive so that itcould appoint or not appoint any judge to the High Court or to the SupremeCourt against the wishes of the Chief Justice of India or any otherconstitutional functionary. Incidentally, the Court also decided that it couldlook into the entire record concerning the appointment of judges and thegovernment could not claim any privilege to withhold any of them.

The majority decision in the Judges Case was generally foundunsatisfactory by the legal fraternity and was criticized in scholarly writingsand opinions. 3 Seminars and conferences were held and academic writingsappeared that advocated a change in the situation which gave primacy to theexecutive in the matter of appointment and transfer of judges.Overwhelmingly, they asked for the creation of a collegial body, with the

129. For a succinct summary of the case, see Jill Cottrell, The Indian Judges' TransferCase, 33 INT'L & COMP. L. Q. 1032 (1984).

130. See, SEERVAI, supra note 6, at 2275; Cottrell, supra note 129; LAW COMMISSION OFINDIAN ONE HUNDRED TWENTY-FIRST REPORT, supra note 90, 1 2.13, at 11, 4.2, at 24; ARUNSHouRIE, MRS. GANDI-n's SECOND REIGN (1983).

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predominance of the judiciary, for the appointment and transfer of judges.The Law Commission of India also once again seized the opportunity toexamine this issue. Unlike before, this time the Commission came to theconclusion that "experience would make it difficult to continue to subscribeto the view that the present constitutional scheme as to the method ofappointment of Judges is basically sound or that it had on the whole workedsatisfactorily and does not call for any radical change."'' Recognizing in thelight of global experience and development of law and practice the need ofjudicial primacy and wider consultation so as to induct the best persons in thejudiciary, it recommended the creation of an eleven member National JudicialService Commission chaired by the Chief Justice of India and a consequentialconstitutional amendment.132

C. The Second Judges Case

The dissatisfaction with the Judges Case led to the Second JudgesCase 33 which arose from three petitions under Article 32 that demandedfilling existing vacancies in the Supreme Court and various High Courts. Inthe course of hearing those petitions, a two-judge bench of the Court doubtedthe correctness of the majority view in the Judges Case and directed:

The correctness of the opinion of the majority in S. P.Gupta's case ... relating to the status and importance ofconsultation, the primacy of the position of the Chief Justiceof India and the view that the fixation of Judge strength is notjusticiable should be reconsidered by a larger bench.'34

In the majority opinion of Justice J. S. Verma (who later became ChiefJustice) for a nine-judge bench in the Second Judges case, these two issueswere reformulated as follows:

(1) Primacy of the opinion of the Chief Justice of India inregard to the appointments of Judges to the Supreme Courtand the High Courts, and in regard to the transfers of High

131. LAW COMMISSION OF INDIA, ONE HUNDRED TWENTY-FIRST REPORT, supra note 90,3.17, at 20.

132. Seeid. at40.133. Supreme Court Advocates on Record Ass'n v. Union of India, A.IR. 1994 S.C. 268

[hereinafter Second Judges Case].134. Subhash Sharma v. Union of India, A.I.R. 1991 S.C. 631 (quoted in the Second

Judges Case, A.I.R. 1994 S.C. at 360).

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Court Judges/Chief Justices; and(2) Justiciability of these matters, including the matter offixation of the Judges strength in the High Courts. 3 '

Out of the five opinions expressed in the Second Judges Case, JusticeVerma spoke for himself and four of his colleagues with whom two othercolleagues concurred in separate opinions. The two minority judges partlydissented and partly concurred with the majority. The bench was, however,unanimous in reiterating the independence of the judiciary as a basic featureof the Indian Constitution essential for upholding the rule of law which wasalso a basic feature of the constitution.

Briefly, the Court's opinion is dominated by the emphasis on "integrated'participatory consultative process' for selecting the best and most suitablepersons available for appointment" in which "all the constitutionalfunctionaries must perform this duty collectively with a view primarily toreach an agreed decision, subserving the constitutional purpose, so that theoccasion of primacy does not arise" in the matter of appointment ofjudges tothe Supreme Court and the High Courts.'36 Outlining the operative norms forthis purpose, the Court held that the proposal for the appointment ofjudges tothe Supreme Court and the High Courts must be initiated by the Chief Justicesof the respective courts. These proposals have to be submitted by the ChiefJustice of India to the President. The President must consider these proposalswithin a set time frame. In case of a difference of opinion between differentconstitutional functionaries, the opinion of the Chief Justice of India hasprimacy. In the making of a recommendation, the Chief Justice of Indiarepresents the judiciary and does not act as an individual. So the ChiefJustice's opinion is the opinion of the judiciary, "symbolised by the view ofthe Chief Justice of India.""' To rule out any arbitrariness on the part ofChief Justice of India and to ensure observance of the rule of law, the opinionof the Chief Justice of India must be formed in the case of appointment to theSupreme Court by "taking into account the views of the two senior mostJudges of the Supreme Court."'38 The Chief Justice "is also expected toascertain the views of the senior most Judge of the Supreme Court whoseopinion is likely to be significant in adjudging the suitability of the candidate,by reason of the fact that he has come from the same High Court, orotherwise."' 39 In the case of appointment to the High Courts the process ofappointment shall be initiated by the Chief Justice of the concerned High

135. Second Judges Case, A.I.R. 1994 S.C. at 420. Justice Verma spoke for himself andfor Justices Dayal, Ray, Anand, and Bharucha.

136. Id. at 442.137. Id.138. Id. at 436.139. Id.

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Court who must form his opinion about an appointment "after ascertaining theviews of at least two senior most Judges of the High Court."'4 ° In theformation of his opinion on the opinion of the Chief Justice of the High Courtand of the Governor of the State, "the Chief Justice of India is expected totake into account the views of his colleagues in the Supreme Court who arelikely to be conversant with the affairs of the concerned High Court."'' TheChief Justice of India may also consult one or more seniorjudges of that HighCourt. Greatest weight must be given to the opinion of the Chief Justice of theHigh Court, but the opinions of other constitutional functionaries must also begiven due weight.'42 "The ascertainment of the opinion of the other Judges bythe Chief Justice of India and the Chief Justice of the High Court, and theexpression of their opinion, must be in writing to avoid any ambiguity." 43

The seniority of judges in the High Court must be given due consideration inthe matter of appointment to the Supreme Court because it is an importantfactor and it also constitutes a legitimate expectation. No appointment to theSupreme Court or a High Court shall be made except in conformity with thefinal opinion of the Chief Justice of India made in this manner. Anappointment recommended by the Chief Justice of India may not be made iffor strong objective reasons disclosed to the Chief Justice of India the personrecommended is not suitable for appointment. "However, if the stated reasonsare not accepted by the Chief Justice of India and the other Judges of theSupreme Court who have been consulted in the matter, on reiteration of therecommendation by the Chief Justice of India, the appointment should bemade as a healthy convention. ' 14 4

To avoid speculation and uncertainty the Court also suggested a time-bound, expeditious procedure for the appointment of the judges. 145

Regarding the appointment of the Chief Justice of India, by conventionthe proposal is initiated by the outgoing Chief Justice of India for theappointment of "the senior most Judge of the Supreme Court considered fit tohold the office."'" Consultation provided in Article 124(2) is required only"if there be any doubt about the fitness of the senior most Judge to hold theoffice, which alone may permit and justify a departure from the long standingconvention."

47

140. Id. at 437.141. Id. at 436.142. See id. "The initial appointment of a Judge can be made to a High Court other than

that for which the proposal was initiated." Id.143. Id. at 437.144. Id. at 442.145. See id. at 439.146. Id. at 442.147. Id. at 439.

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Concerning transfers, the Court held that the opinion of the Chief Justiceof India not only has primacy, but is determinative.'48 Consent of theconcerned judge is not required for the initial or subsequent transfer.'49 In theformation of an opinion on a transfer, the Chief Justice of India is expected totake into account the views of the Chief Justice of the High Court from whichthe judge is to be transferred, anyjudge of the Supreme Court whose opinionmay be of significance in that case, as well as the views of at least one otherChief Justice of a High Court whose views are considered relevant by theChief Justice of India. The personal factors relating to the concernedjudge-and that judge's response to the proposal-including the judge'spreference of places of transfer, should be taken into account by the ChiefJustice of India before forming an objective final opinion."0 Any transfer somade is not to be deemed punitive and is not justiciable except to the extentthat it has been made on the recommendation of the Chief Justice of India.15'

On the question of fixation of judge strength in the High Courts, theCourt held that the Chief Justice of India and the Chief Justice of theconcerned High Court must undertake periodic review of such strength in theinterest of effective administration of justice and the recommendation of theChief Justice of India in this regard must be acted upon by the President with"due dispatch."' 52 The courts may order the President to act if he fails to doSO. 15

3

One of the concurring judges made the additional suggestion that asrepresentative of the people, the executive could also suggest names to theChief Justice of India, although names of all potential appointees must cometo the President from the Chief Justice of India.'54 "Though appointment ofJudges to the superior judiciary," he added, "should be made purely on merit,it must be ensured that all sections of the people are duly represented so thatthere may not be any grievance of neglect from any section or class ofsociety."'5 The other concurringjudge disagreed with the seniority alone rulein the matter of appointment of the Chief Justice of India and suggested that

148. See id. at 442.149. See id.150. See id. at 440151. Seeid. at441. TheCourt said:

Except on the ground of want of consultation with the named constitutionalfunctionaries or lack of any condition of eligibility in the case of an appointment,or of a transfer being made without the recommendation of the Chief Justice ofIndia, these matters are not justiciable on any other ground, including that ofbias, which in any case is excluded by the element of plurality in the process ofdecision making.

Id.152. Id. at 441.153. See id. at 441-42.154. See id. at 356 (Pandian, J., concurring).155. Id.

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the Chief Justice of India must be appointed on the basis of merit.'56 One ofthe minority judges, while agreeing with the primacy of the Chief Justice ofIndia in the matter of appointment of judges to the Supreme Court and theHigh Courts, disagreed with the subjection of this primacy to the requirementof the Chief Justice acting as a body consisting of the Chief Justice and otherjudges.' Another minority judge agreed with the majority that in the matterof appointment that the views of the Chief Justice of India deserved highestrespect but could not be given primacy under the present constitution. 58 Onother issues such as transfers'59 and fixing the strength of judges, he agreedwith the majority. 60

The Second Judges Case was a gain for the judiciary vis-A-vis theexecutive in the matter of appointment and transfer ofjudges. However, thecase was not universally hailed. H. M. Seervai, the celebrated author of theConstitutional Law of India, a staunch supporter of the independence of thejudiciary and one of the strongest critics of the Judges Case who asked for itsimmediate overruling and for laying down the law almost exactly on the samelines as laid down in the Second Judges Case, has also criticized the SecondJudges Case6 1 and called it an amendment and reversal of the constitution.'62

Indications are available that the Union Govemment has thought more thanonce of introducing an amendment to the constitution that would either restorethe previous position or provide a new mechanism for the appointment ofjudges. 63 No concrete step has, however, been taken so far in that direction.

156. See id. at 417 (Kuldip Singh, J., concurring).157. See id. at 453-54 (Punchhi, J., dissenting). Judge Punchhi noted:

[T]he role of Chief Justice of India in the matter of appointment ofthe Judges of the Supreme Court is unique, singular and primal, butparticipatory vis-A-vis the Executive on a level of togetherness andmutuality, and neither he nor the executive can push through anappointment in derogation of the wishes of the other. S.P. Gupta'scase... to that extent need be[,] and is hereby explained away[,]restoring the primacy of the Chief Justice.

Id. at 453.158. See id. at 394 (Ahmadi, C.J., dissenting).159. Seeid. at 395.160. See id.161. See SEERVAI, supra note 6, at 2706. The only important criticism of Seervai of the

Judges Case that was not upheld in the SecondJudges Case was his strong plea against transferwithout the consent of the transferred judge. See id. Otherwise, he has supported the primacyof the opinion of the Chief Justice of India in the matter of appointment of judges, though, ofcourse, he did not speak of a college in this or any other regard. See id.

162. See id. at 2927; Rao, supra note 88, at 837.163. See Bal Krishna, Move on Judges' Appointment Sparks Debate, HINDUSTAN TIMES,

Aug. 4, 1997, at 9; P. Patra, The Case for a Judicial Commission, HINDUSTAN TIMES, July 27,1998, at 12; S. Mitra, Nudge the Judges, INDIA TODAY, May 4, 1998, at 46.

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D. The Third Judges Case

At the operational level, it has been noted that the vacancies of thejudges remain unfilled as before"6 and the transfers ofjudges from one HighCourt to another have not been free from controversy and have even resultedin litigation.'65 However, as between the executive and the judiciary, nocontroversy became public until towards the end of 1997 when the then ChiefJustice of India failed to name his successor on time in terms of the SecondJudges Case"6 and later in mid-1998, when the executive refused to appointjudges to the Supreme Court and to transfer Chief Justices of High Courtsrecommended by the Chief Justice of India. 6 7 While the first controversy wasresolved by the Chief Justice of India by delayed nomination of his successor,the second led to an unsavory exchange of notes and letters between the ChiefJustice of India and the executive and culminated in litigation. 6 ' The gravityof the situation led the President to refer to the Supreme Court to give itsopinion in the matter known as the Third Judges Case.'69

Referring to the decision in the Second Judges Case on the question ofappointment and transfer of judges and to the doubts that had arisen withrespect to its interpretation which required to be resolved in the publicinterest, the President's reference specified nine questions for the opinion ofthe Supreme Court. 7 The Court assembled a nine judge bench for decidingthe reference. The bench stated that the nine questions referred to it related

164. See M. J.Antony, The Short-Staffed Judiciary, Bus. STANDARD, Aug. 12, 1998;TIMES OF INDIA, June 11, July 1, and Sept. 28, 1999.

165. See K. Ashok Reddy v. Government of India, (1994) 2 S.C.C 303. TIMES OF INDIA,

Sept. 18 1999.166. Chief Justice J. S.Verma could not nominate his successor until January 3, 1998 while

he himself was retiring on January 18, 1998. According to the Second Judges Case the senior-most puisne judge of the Supreme Court has to be appointed Chief Justice of India on therecommendation of the Chief Justice of India if found fit for service. The name of thesucceeding Chief Justice must be announced one month before the retirement of the incumbentChief Justice, and must be sent to the executive at least six weeks before such announcement.Accordingly, Chief Justice Verma should have sent the name of his successor by November 6,1997. Perhaps he could have done so but for the serious charges made against the senior-mostjudge-Justice M. M. Punchhi-by a group of senior lawyers which charges Chief JusticeVerma had apparently forwarded to the President.

167. Apparently at the beginning of May 1998, Chief Justice M. M. Punchhirecommended three appointments to the Supreme Court and the transfer of four Chief Justicesof the High Courts. These appointments and transfers drew criticism both from some of theaffected judges and a group of senior lawyers. The critics alleged lack of bona fides andrequired consultation in the action of the Chief Justice of India. See Mitra, supra note 163, at46.

168. See id, At least two writ petitions were filed in the Supreme Court for appropriatedirections to the executive to make the appointments. See id.

169. In re Presidential Reference, A.I.R. 1999 S.C. 1. See Appendix for Article 143, whichauthorizes the President to seek the opinion of the Supreme Court.

170. For the text of the reference along with the questions see id.

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broadly to three aspects, namely, consultation between the Chief Justice ofIndia and his fellow judges in the matter of appointments of Supreme Courtand High Court judges and transfer of the latter; judicial review of transfersof judges; and the relevance of seniority in making appointments to theSupreme Court. 7 '

The bench gave a unanimous opinion. It stated that according to themajority in the Second Judges Case, the opinion of the Chief Justice of Indiais to be made according to the norms laid down in that case. "It must followthat an opinion formed by the Chief Justice of India in any manner other thanthat indicated has no primacy in the matter of appointments to the SupremeCourt and the High Courts and the Government is not obliged to actthereon."'72 The Attorney-General drew the Court's attention to the fact that"at the latest selection of Judges appointed to the Supreme Court, the thenChief Justice of India had constituted a panel of himself and five of the thensenior most puisne Judges" and submitted that this precedent should be treatedas a convention and institutionalized.'73 The Court noted that "[p]resently,and for a long time now, that collegium consists of the two senior most puisneJudges of the Supreme Court.' ' 74

The Court also distinguished between the body that had to decide andthe others who were to be consulted. Regarding to the terms of Article 124(2),the Court concluded:

[Als analysed in the majority judgement in the second Judgescase, as also the precedent set by the then Chief Justice ofIndia, as set out earlier, and having regard to the objectiveaforestated, we think it desirable that the collegium shouldconsist of the Chief Justice of India and the four senior mostpuisne Judges of the Supreme Court.'75

It clarified that in case none of the four puisne judges is going to succeed theChief Justice of India by seniority, the successor Chief Justice of India mustalso be included in the collegium. 76 Further, the senior most judge in theSupreme Court from a High Court from where an appointment to the SupremeCourt has to be made must be consulted, but such a judge cannot be mademember of the collegium. If by chance the senior most judge does not knowof the merits or demerits of a candidate, the next senior most judge must be

171. See In re Presidential Reference, A.IR. 1999 S.C. at 7.172. Id. at 16.173. Id.174. Id.175. Id.176. See id.

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consulted."' The opinions of the members of the collegium and of the seniormost judge in the Supreme Court from that High Court must be in writing.The opinion of others, particularly of non-judges, whom the Chief Justice ofIndia may decide to consult, may not be in writing, but a written memorandummust be prepared that should be conveyed to the Government of India.'

The collegium is expected to make its decision by consensus. "Shouldthat not happen, it must be remembered that no one can be appointed to theSupreme Court unless his appointment is in conformity with the opinion of theChief Justice of India."' 79 If the Chief Justice of India favors an appointmentbut the majority of the collegium opposes it, the appointment must not bemade. If an appointment recommended by Chief Justice of India is foundunsuitable by the executive and comes for reconsideration to the Chief Justiceof India, the Chief Justice of India will consider it in the whole collegium andif some members have retired in the meantime then in the reconstitutedcollegium. Only if the collegium unanimously reiterates the appointment mustthe appointment be made." 0 It is imperative that the number ofjudges of theSupreme Court who consider the reasons for non-appointment be as large asthe number that had made the particular recommendation.'" The ChiefJustice of India may also ask for the response of the judge recommended byhim and opposed by the government on the reasons given by the government.This response must be considered by the entire collegium.' 2

In making appointments from amongst the High Court judges, the Courtreaffirmed the seniority principle but clarified that as merit is the predominantconsideration in the matter of a candidate's appointment, meritorious personsmay be appointed without regard to their seniority."13 It is only in support ofsuch candidates that the reasons have to be given and not about the judgeswho have been superseded.8 4

When the contenders for appointment to the Supreme Courtdo not possess such outstanding merit but have, nevertheless,the required merit in more or less equal degree, there may bereason to recommend one among them because, for example,

177. See id. at 17.178. See id.179. Id.180. See id. at 18.181. See id.182. See id.183. See id.184. See id.

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the particular region of the country in which his parent HighCourt is situated is not represented on the Supreme CourtBench.'

The decision-making collegium for appointment of judges to HighCourts must consist of the Chief Justice of India and the two senior mostjudges who would consider the recommendation of the Chief Justice of theHigh Court and consult any other High Court judges and judges from theSupreme Court who may be conversant with that High Court."6

Judicial review of appointments or recommended appointments can besought if any of the conditions of consultation and decision making as statedby the Court or of eligibility were not satisfied.'87

Regarding the transfer of judges, including Chief Justices, from oneHigh Court to another, the Chief Justice of India should consult the ChiefJustice of that High Court as well as of the High Court where a judge is to betransferred and also one or more judges of the Supreme Court "who are in aposition to provide material which would assist in the process of decidingwhether or not a proposed transfer should take place."'88 The views of thesejudges are to be obtained in writing as well as the response of the judge to betransferred should finally be placed before a collegium consisting of the ChiefJustice of India and four senior most judges of the Supreme Court.'89 Theviews of each member of the collegium along with the views placed before thecollegium "should be conveyed to the Government of India along with theproposal of transfer."' 19 Thus, the conditions for transfer of ajudge have beenmade even more demanding than the conditions for appointment. A transferis also subject to judicial review on the petition of the transferred judge on theground of lack of consultation and non-observance of the decision-makingprocess.''

V. THE WORKING OF THE NEW FORMULA

After the above opinion of the Court one would have expected easierapplication for the process of appointments and transfers. But that did nothappen. Following the norms laid down in the opinion four names were

185. Id.186. See id. at 19.187. See id..188. Id. at 21.189. See id.190. Id.191. See id. A petition regarding transfer of a High Court Judge has, however, been

recently filed in the Rajasthan High Court on grounds of arbitrariness and discrimination. SeeTIMES OF INDIA, supra note 164.

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recommended to the President of India for appointment in November 1998.While appointing the recommended persons the President made the followingobservation:

I would like to record my views that while recommending theappointment of Supreme Courtjudges, it would be consonantwith constitutional principles and the nation's socialobjectives if persons belonging to weaker sections of societylike SCs and STs, who comprise 25 per cent of thepopulation, and women are given due consideration....Eligible persons from these categories are available and theirunder-representation or non-representation would not bejustifiable. Keeping vacancies unfilled is also not desirablegiven the need for representation of different sections ofsociety and the volume of work the Supreme Court isrequired to handle.'92

After the law minister communicated these observations to the ChiefJustice of India and the press came to know of them, they received divergentreactions.'93 The Chief Justice of India asserted "that merit alone has been thecriterion for selection of judges and no discrimination has been done whilemaking appointments."'94 He added: "Our Constitution envisages that meritalone is the criterion for all appointments to the Supreme Court and highcourts. And we are scrupulously adhering to these provisions. An unfilledvacancy may not cause as much harm as a wrongly filled vacancy."'"

Nobody seemed to have taken serious objection to the President'sremarks which were found well within his domain. Some sections of the pressgave an impression of a veiled attempt by the President to achieve reservationsin favor of the Schedule Castes and Schedule Tribes and for the appointmentof specific judges from the Schedule Castes.' But such impression has beenstoutly refuted. 97 While nobody spoke against merit, almost everyone hassupported the consideration of the diversity of the country and the principleof democratic representation of all sections of the society in all its institutions,including the judiciary. "Merit" was explained in that light, 9" and

192. Prabhu Chawla, Courting Controversy, INDIA TODAY, Jan. 25, 1999, at 20-22.193. See id.; SUNDAY PIONEER, (New Delhi), Jan. 17, 1999, at 1, 5; HINDUSTANTIMES, Jan.

24, 1999, at 12; HINDUSTAN TIMES, Jan. 17, 1999, at 1; TIMES OF INDIA, Jan. 23, 1999, at 8;Rajeev Dhavan, The President and the Judiciary, HINDU, Jan. 29, 1999, at 10.

194. Chawla, supra note 192, at 22.195. 1d. at 23.196. See id. at 22.197. See supra note 193.198. See, e.g., Dhavan, supra note 193. "The criterion of 'merit' has never been founded

on some skewed concept of knowledge of black letter law.... Legal competence is a baseline.

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representation of different sections of the society, particularly of theScheduled Castes, Scheduled Tribes, and women in the judiciary wassupported and demanded.'99

A. Reflective Judiciary

Apart from these quick responses from the legal fraternity in India,theory and practice of judicial appointments support and justify thePresident's remarks. The judiciary is one of the three organs of thegovernment. In a democratic government, ideally speaking, the legislative andexecutive powers are representative of the society.2" Such representation isnecessary to justify the government of the people which rules them by theirconsent. Perhaps at some point in time long ago it could be have been arguedthat the judiciary does not rule but simply applies the law in a dispute betweentwo private parties. But it is no more in dispute that the judiciary not onlymakes laws but also participates in policy making, particularly when handlingmatters concerning the government and its agencies. For the exercise of such

Experience is not just judicial experience but a capacity to understand the 'felt necessities' ofall people of this complex nation." Id. Elsewhere the President has said:

Written into the concept of merit is the capacity to uphold interests of thedisadvantaged. Hence to guarantee merit you need representation from weakersections and social justice. Otherwise, merit is very elusive.... The Presidentis reminding that appointments to the judiciary should take into account thesocial and plural diversity of the country--it bolsters faith in the judiciary.

R. Ramachandran, The Conflict that Never Was, HINDUSTAN TIMES, Jan. 24, 1999.199. Another prominent lawyer, Venugopal, also supports merit when he says "every

democracy, including the [United States], attempts to provide representation to all sections ofsociety, especially the minorities, in the judiciary. 'Any suggestion regarding induction ofunrepresented sections of the community, including women or minorities and weaker sections,is consistent with the democratic basis of the Constitution."' Rarnachandran, supra note 198.Other examples of minorities given by Judge Sukumaran include the representation of Muslimsin Calcutta and Christians in Cochin. See id. Similarly, Nariman, admitting that "the Presidenthas a point," illustrates: "In the United States there has been a 'Jewish seat' in its SupremeCourt, and in Australia there had been for many years a 'seat' in the High Court for a Judgeprofessing the Catholic faith." Id. Senior Congress leader V. N. Gadgil, supporting thePresident's stand, said "[i]t [i]s only proper that fair representation is given to Dalits in thejudiciary." Id. Also, the Communist Party of India (CPI) has pointed out that "the underrepresentation of Scheduled Castes and Tribes in judiciary was 'very much a matter ofconcern."' Supporting the President, Chandrabhan Prasad (Dalit Shiksa Andolan) commented:"At least one Dalit judge could be appointed to give a boost to the rest. It would help as aconfidence-building measure." SUNDAYPIONEER, supra note 193. The idea seems to have beenfurther appreciated by the lawyers when they felt that "the superior judiciary had littleinteraction with the people at the grass-roots level, hence judges were ignorant about thepeoples' aspirations." TIMES OF INDIA, supra note 193. Nariman said that "the process ofappointment of judges has to be more broad-based since it was not possible for the SupremeCourt judges sitting in the Capital to know what was happening across the country." Id.

200. See BERNARD MANIN, THE PRINCIPLES OF REPRESENTATIVE GOVERNMENT (1997).

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powers in a democracy the judiciary must also have similar, if not the same,justification as the other two organs of the government. Therefore, it mustalso in some way represent the people. Otherwise the laws and the policieslaid down by it will have no democratic basis. For that end it is not necessaryor even desirable that the judiciary must be elected in the same way as theother two organs of the government. But it must in some way represent or, asShetreet prefers, reflect the society in which it operates.2"' To quote Shetreet:

An important duty lies upon the appointing authorities toensure abalanced composition ofthejudiciary, ideologically,socially, culturally and the like. This is based on a doctrinalground, which has been suggested: the principle of fairreflection. This doctrinal approach may be supported byadditional arguments. The judiciary is a branch of thegovernment, not merely a dispute resolution institution. Assuch it cannot be composed in total disregard of the society.Hence, due regard must be given to the consideration of fairreflection. There are other grounds for ensuring well-balanced composition of the judiciary. First, the need topreserve public confidence in the courts. Secondly, the needto ensure balanced panels in appellate courts, particularly incases with public or political overtones.20 2

Pursuing the same theme at another place Shetreet says:

[J]udges decide cases upon background understanding basedon fundamental values of the system. Those understandingsare judge made and are based on the interpretation of thejudge. If the judiciary is not reflective of society as a whole,the adjudication may be based on background understandingsstrongly coloured by a narrower set of values.0 3

201. Shimon Shetreet, Judging in Society: The Changing Role of Courts, in THE ROLE OFCOURTS IN SOCIETY 467, 479 (Shimon Shetreet ed., 1988) [hereinafter Shetreet, Judging inSociety]. Shetreet remarked: "I preferred the term 'reflective' to the term 'representative,' sincethe judges, unlike legislators or elected executives, do not represent. Likewise, the courtsshould not be numerically representative; 'reflective,' therefore, is a more appropriate term toindicate this idea." Id.

202. Shetreet, Judicial Independence, supra note 10, at 635.203. Shetreet, Judging in Society, supra note 201, at 480. Shetreet repeats that "the

judiciary must be fairly reflective of the society it judges in terms of ideological inclinations,geographical distribution, cultural traditions and ethnic compositions." Id at 479. For similarviews see also, MARTIN L. FRIEDLAND, A PLACE APART: JUDICIAL INDEPENDENCE ANDACCOUNTABILITY IN CANADA 246 (1995).

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Studies on judicial behavior have long established that a judge'sbackground plays an important role in that judge's decision making. 4 For therepresentation of the background, Shetreet is not suggesting a numerical oraccurately proportional representation in the judiciary. He is asking only fora fair reflection of the society in it. He finds such reflection necessary for theindependence of the judiciary. ° He supports his view with examples ofcountries which lead in the independence of the judiciary such as UnitedStates, Canada, England, Germany, and several other countries practicing iteither as a matter of statutory rule or convention.2" Shetreet is not alone inthis venture. He has actually summarized the views of many others, includingthose of some international bodies. Notable among the conclusions of theinternational bodies are the Singhvi and Montreal declarations on theindependence ofjustice which in identical language state: "The process andstandards ofjudicial selection shall give due consideration to ensuring a fairreflection by the judiciary of the society in all its aspects.""0 7 "Balancing'representation' on bases of religion, geography, race, and sex," tells HenryAbraham, "has also played a major role in presidential choice of SupremeCourt nominees" in the United States.2 8

Such practice is not unknown in India. In pre-independent India theJudicial Committee of the Privy Council included as a matter of law judgesfrom India.2"9 Similarly, in pre-independence India representation wasprovided to certain communities in certain High Courts in view of the strengthof those communities within the territorial limits of those High Courts.2"' Tosome extent these considerations have been taken into account since

204. See BENJAMIN N. CORDOZO, THE NATURE OF THE JUDICIAL PROCESS (1941); HENRYJ. ABRAHAM, THE JUDICIAL PROCESS (7th ed. 1998); TONY FREYER & TIMOTHY DIXON,DEMOCRACY AND JUDICIAL INDEPENDENCE 261, 263 (1995).

205. Shetreet, Judicial Independence, supra note 10, at 633; see also John B. Wefing. TheNew Jersey Supreme Court 1948-1998: Fifty Years ofIndependence and Activism, 29 RUTGERSL. J. 701, 710 (1998).

206. See Shetreet, Judicial Independence, supra note 10, at 633-34.207. Draft Universal Declaration on the Independence of Justice (Singhvi Declaration)

11(a), reprinted in CILI Bulletin No. 25-26, at 38, 41 (Apr.-Oct. 1990); the UniversalDeclaration on the Independence of Justice (Montreal Declaration) 2.13, reprinted in JUDICIALINDEPENDENCE: THE CONTEMPORARY DEBATE, supra note 10, at 447, 451.

208. ABRAHAM, supra note 204, at 67. The author states that a female, black, Jewish, andRoman Catholic seat, one each, is almost an unwritten rule in the court appointments. See id.For a similar demand in England see STEVENS, THE INDEPENDENCE OF THE JUDICIARY, supranote 7, at 177.

209. See the Judicial Committee Act 1833 providing for two Indian judges as assessors;the Appellate Jurisdiction Act 1908 providing for full members of the Judicial Committee upto two judges from India. For names of some of the Indian nativejudges who sat on the JudicialCommittee of the Privy Council see MAHABIR P. JAIN, OUTLINES OF INDIAN LEGAL HISTORY,394 (3d ed. 1972).

210. See the examples of Calcutta and Cochin High Courts providing for representationto Muslims and Christians, respectively, in HINDUSTAN TIMES, Jan. 24, 1999, at 2.

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independence and care is normally taken to give representation to majorcommunities and regions in the Supreme Court. Although sometimes suchpractice has been criticized because it may come in the way of the ablestamong the prospective candidates for judgeship in reaching the bench,21'

nobody seems to have ever alleged that such practice has in any way affectedthe independence of the judiciary. On the contrary, time and again the needand fact of representation of different regions and minorities in theappointment of judges, particularly in the Supreme Court, has beenemphasized.2 12

Even though a reflective judiciary was not an issue either in the SecondJudges Case or the Third Judges Case, one of the judges in the former caseclearly spoke for it while the entire Court acknowledged its relevance in thelatter case. Nowhere the Court has spoken against it in either of these twocases, though some of the judges have clearly spoken for it. Thus, in theSecond Judges Case, Justice Pandian stated:

It is essential and vital for the establishment of realparticipatory democracy that all sections and classes ofpeople, be they backward classes or scheduled castes orscheduled tribes or minorities or women, should be affordedequal opportunity so that the judicial administration is alsoparticipated in by the outstanding and meritorious candidatesbelonging to all sections of the society and not by anyselective or insular group.21 3

Clarifying that he was not asking for a quota or reservation for anyone,Justice Pandian supported himself with examples of United States and UnitedKingdom and reiterated: "Though appointment of Judges to superiorjudiciaryshould be made purely on merit, it must be ensured that all sections of thepeople are duly represented so that there may not be any grievance of neglectfrom any section or class of society." '214

Therefore, Justice Pandian also held that "the Government which isaccountable to the people, should have the right of suggesting candidates tothe concerned Chief Justice for consideration but the Government has no rightto directly send the proposal for appointments by-passing the Chief Justice

211. See LAW COMMISSION OF INDIA, FOURTEENTH REPORT, supra note 89, 6, at 34,52(1), at 55, 82(8), at 105. See also LAW COMMISSION OF INDIA, EIGHTIETH REPORT, supranote 90, 6.9, at 23.

212. See Third Judges Case, A.I.R. 1999 S.C. at 18; LAW COMMISSION OF INDIA,EIGHTIETH REPORT, supra note 90, 6.9, at 23, 7.10, at 30; LAW COMMISSION OF INDIA, ONEHUNDRED TWENTY FIRST REPORT, supra note 90, 3.14, at 19.

213. Second Judges Case, A.I.R. 1994 S.C. 268 at 348.214. Id.

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concerned.""' None of his colleagues on the bench has disagreed with theseremarks. On the contrary, Jusitce Verma, who wrote the majority opinion,endorsed the opinion of Justice Pandian in these words: "I am grateful foryour concurrence on the main points." ' 6

Similarly in the Third Judges Case, after noting that merit is the"predominant" consideration in the appointment to the Supreme Court, theCourt promulgated the following:

When the contenders for appointment to the Supreme Courtdo not possess such outstanding merit but have, nevertheless,the required merit in more or less equal degree, there may bereason to recommend one among them because,for example,the particular region of the country in which his parent HighCourt is situated is not represented on the Supreme Courtbench.217

It may be noted that representation or fair reflection of the society wasnot an issue before the Court in these cases. What would have been thereaction of the Court if it had been an issue before it is subject to speculation.But in view of India's constitutional provisions and practices whichunmistakably provide for and observe representation of weakersections-minorities and women-in legislative and executive bodies and alsoin the civil services and lower judiciary, it may reasonably be expected thatif the issue is addressed to the Court it will support fair reflection of thesociety in the higher judiciary also. z"8

Returning to the President's and the Chief Justice's reactions to it, animpression was tried to be created as if the President were asking for ignoringthe merit in favor of representation of certain sections of the society, while theChief Justice was insisting on merit and ignoring the representation. Perhapsthe divide between the views of the two was not as big as was projected. Ona close examination one may find no opposition between representation andmerit and, therefore, no opposition between the views of the President and theChief Justice. Merit is not a fixed or set standard." 9 It may differ for

215. Id.216. Id.217. Third Judges Case, A.I.R. 1999 S.C. at 18 (emphasis added).218. The constitution specifically reserves seats in Parliament and State legislatures for

Scheduled Castes and Scheduled Tribes, as well as for Anglo Indians and in the municipalities,and panchayats for women. It makes special provision for women, children, Scheduled Castes,Scheduled Tribes, and other sections of the society. See M. P. Singh, Affirmative Protectionof Minorities in India, in THE LIVING LAw OF NATIONS 301 (Gudmundar Alfredsson & PeterMacalister-Smith eds., 1996).

219. For an insightful discussion on this issue see Christopher McCrudden, MeritPrinciples, 18 OXFORD J. OF LEGAL STUD. 543 (1998). The author notes and discusses five

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different purposes and occasions. Therefore, merit for ajudge in a pluralisticand diverse society cannot be the same as in a monolithic and homogenoussociety.22 Even if one accepts, which is not the case, that the Court in the lasttwo Judges cases has insisted on merit as the sole consideration for theappointment of judges, it has not defined or explained merit other thanindicating certain qualities of a judge.2 ' But there is no unanimity or finalityon these qualities.2 Even if one agrees on certain minimum qualities whichevery judge must possess, no objection should be raised to adding more tosupplementing them according to the requirements of a society.

Nobody is asking or seems to have ever asked for quotas or reservationsin the appointment ofjudges. Nor should that be demanded. The diversity ofthe Indian society, however, could not be ignored. How this diversity is to bedealt with is a complex and delicate issue on which opinions may sharplydiffer. But for the present purpose of achieving, maintaining, and improvingthe quality ofjustice administered by the courts and for reposing greater faithof the people in them and thereby ensuring the independence of the judiciary,the principle of reflection of the society should be observed. With the lawestablished by the Court on the appointment of judges, greater justificationlies for the observance of this principle. Earlier a representative executivewas supposed to have a dominant role in the appointment of the judges whilethat role has now been taken over by the judges in whose appointments peoplehave no direct or indirect role. A heavy responsibility, therefore, lies upon thejudges to demonstrate that even though they are self-appointed, they representtheir society and that they are not a closed group of people perpetuating theirown rule. They must discharge that responsibility with sagacity and foresightand must encourage and invite suggestions for appointment of judges from

different conceptions of merit. See id.220. Speaking to the students of the Faculty of Law, University of Delhi in the spring of

1997, one of the most prominent former Chief Justices of India, Justice P. N. Bhagwati, narratedhow his perception of the Indian Constitution and law took a turn after he visited some of therural areas in Gujarat after becoming the Chief Justice of that High Court. Similarly, speakingto the same audience at another occasion, one of the most progressive former judges of theSupreme Court, Justice V. R. Krishna Iyer, narrated that when in a petition of a Naga tribal inthe Supreme Court, opposite counsel raised the question of merit in the petition. lyer'sresponse was that the fact that the petitioner is a Naga and has come all the way to approach theSupreme Court for justice is itself a merit in the petition.

221. See Second Judges Case, A.I.R. 1994 S.C. 268 at 433. Jusitce Verma states that"[i]egal expertise, ability to handle cases, proper personal conduct and ethical behaviour,firmness and fearlessness are obvious essential attributes of a person suitable for appointmentas a superior Judge." Id.

222. See infra note 223; Singhvi Declaration, supra note 207, 9; Montreal Declaraion,supra note 207, 1 2.11 (stating that candidates for judicial office shall be individuals ofintegrity and ability, well-trained in the law). In the same vein, see different opinions in theJudges Case, Second Judges Case, and SEERVAI, supra note 6, 25.394, supplemented supranote 161 and accompanying text. See also ABRAHAM, supra note 204, at 56.

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different sources, including the executive, the bar, and the legal luminaries.Now the responsibility primarily lies on the bench to create a judiciary whichis not only independent of the executive and the legislature, but which is alsocompetent to perform the unfinished task of social revolution which the IndianConstitution makers had envisaged.223

VI. CONCLUSION

From the foregoing account of the constitutional provisions, theirhistory, interpretation, and application, the problems faced and the solutionssuggested, several conclusions emerge. First, the constitution makers did notwant to leave the appointment ofjudges exclusively to the executive. Second,doubts were expressed from the very beginning whether the formula adoptedin the Indian Constitution would serve the purpose of establishing andmaintaining an independent judiciary. Third, doubts were confirmed withrespect to the High Courts even before the commencement of the constitutionand soon after the commencement of the constitution even with respect to theSupreme Court. Fourth, though the constitution makers intended effectiveinvolvement of the judges, particularly of the Chief Justice of India and theChief Justices of High Courts, they refused to permit the Chief Justice of Indiato have the last word. Fifth, the constitution makers did not agree to make theappointments subject to the recommendations of any panel or approval of thelegislature. Sixth, the constitution makers sincerely believed that thearrangement they had made in the constitution was the most suitable andappropriate for India and hoped that the high constitutional functionariesinvolved in the process would discharge their constitutional obligation withfull responsibility. Seventh, the consitution makers were not completelywrong in their assessment and, subject to occasional aberrations, the systemhas worked well.

Eighth, the judicial interpretation of giving primacy to the executive hasgone against the expectations of the constitution makers and the independenceof the judiciary. Ninth, until the Judges Case, which gave primacy to theexecutive, nobody had seriously entertained the idea of a judicialappointments commission or other similar body outside the scheme alreadylaid down in the Indian Constitution. Tenth, the constitution provides for aconsultative process among several constitutional functionaries andreasonably expects a consensual decision. Eleventh, practice of consultationby the Chief Justice of India and Chief Justices of the High Courts with theircolleagues before making their recommendations was prevalent and

223. On this point see AUSTIN, supra note 6, at 164. Even the title of the chapter, "TheJudiciary and the Social Revolution," is striking. On the revolutionary role of the judges, seeBRUCE ACKERMAN, WE THE PEOPLE: TRANSFORMATIONS (1998).

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IND. INT'L & CoMP. L. REv.

specifically recommended by the Law Commission to be observed as a rule.Finally, no clear consensus on the form and functions of the proposedNational Judicial Appointments Commission and consequential amendmentof the Indian Constitution was, or is, in sight.

In view of all these considerations, the solution given by the SupremeCourt in the Second Judges Case as clarified and confirmed in the ThirdJudges Case appears to be the most appropriate and practical. Withoutoffense to any provision of the constitution it affects and advances the intentof the constitution makers of providing an independent judiciary which couldnot be expressed in any better words. It does not bring back the concurrenceof the Chief Justice of India which had been rejected by the constitutionmakers primarily because the Chief Justice of India, as an individual unaidedby anyone, could also err.224 Even under this solution, in appropriate cases theopinion of the Chief Justice of India may not be given effect. But that willhappen only in consultation with the Chief Justice as a collegium, not at will.The error element which was present in the minds of the constitution makershas been resolved by the Court. Nothing is available in the history of theconstitutional provisions that the solution to the error element given by theCourt was ever suggested by anyone, much less considered by the Assemblyor any of its members. What would have been the reaction of the constitutionmakers had it been suggested to them is speculative. But asking suchquestions is a legitimate method of determining the intent of lawmakers indeciding the difficult or hard cases."' This is much more so in the case of aconstitution which has to endure itself indefinitely in changing times andsituations. The Court does not bring back any of the alternatives consideredand rejected by the Assembly. "In the appointment of Supreme Court andHigh Court justices," Austin notes, "the Assembly provided that the Presidentshould act neither in his discretion nor on the advice of his council ofministers but in consultation with the Chief Justice and otherjustices. '226 TheCourt restores that position.

The Court's interpretation is also justified by the purposiveinterpretation of the Indian Constitution.27 It is universally accepted that the

224. See supra text accompanying note 2 for Dr. Ambedkar's reply in the Assembly.Unlike the President of India who acts on the aid and advice of a Council of Ministersresponsible to Parliament, the Chief Justice of India is not required to act on the aid and adviceof anyone, and is also not accountable to anyone. For the view that the Second Judges Casebrings back the "concurrence" of the Chief Justice of India which was rejected by the Assembly,see SEERVAI, supra note 6, at 2945, 2951; see also Rao, supra note 88.

225. See RONALD DWORKIN, A MATTER OF PRINCIPLE 9 (1986). Dworkin's counterfactualargument for determining the intentions of the law maker is particularly noteworthy. See id. at119.

226. AUSTIN, supra note 6, at 129.227. On the application of purposive interpretation of a constitution, see the decision of

the court of Final Appeal of Hong Kong in Ng Ka-Ling & Others v. Director of Immigration

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constitution does everything possible to ensure the independence of thejudiciary. It is also accepted that the independence of the judiciary is a basicfeature of the constitution. The independence of the judiciary is sought to beupheld not just for its sake, but for ensuring smooth functioning of theconstitution and for the realization of its goal of a free, just, and democraticsociety. Any interpretation of the Indian Constitution which comes in the wayof the independence of the judiciary is, therefore, not consistent with theconstitution and is also notjustifiable. The interpretation in the Judges Casegiving primacy to the executive led to the appointment of at least some judgesagainst the opinion of the Chief Justice of India within the short period of lessthan a decade." 8 This could not have been intended by the constitutionmakers because it was a clear threat to the independence of the judiciary. Ifsuch an interpretation receives widespread criticism and condemnation and thematter is again brought before the Court for reconsideration, the Court isunder a duty to rectify the wrong and give an interpretation which is consistentwith the purpose of the provision and is also not inconsistent with itslanguage. The Court has done that job remarkably well in the Second andThird Judges Cases.

The same may be clearly said with respect to the seniority rule in theappointment of the Chief Justice of India. Apparently, in the two instances inwhich the seniority rule was broken, the superseded judges had given opinionsinconvenient to the then executive. The constitution makers could have neverintended that the judges must be calculating the pleasure or displeasure theirdecisions could bring to the executive of the day and that they could becomeChief Justice of India any time or out of turn by giving opinions that pleasedthe executive or could loose that opportunity forever if they gave an opinionthat displeased it. Such an interpretation would be an outright reversal of theintended independence of the judiciary. Of course, no judge of the SupremeCourt has the claim to become the Chief Justice of India by seniority. But inview of the fact that they have always become Chief Justice by seniorityexcept in two instances where they gave opinions not liked by the appointingauthority makes out a justification for the rule of seniority, unless forobjective reasons supportive of judicial independence, such as physical ormental disability or charges of corruption, participation in politics, or anyother similar reason it may not be followed.

Similarly, with respect to transfers of judges, including Chief Justices,of the High Courts, the Court has evolved a formula which supports the

[1999] 1 H.K.L.R.D. 315 (H.K.). For its application to the Constitution of India see SEERVAI,supra note 6, at 186.

228. According to an affidavit given by the Government of India in the Second JudgesCase, between January 1, 1983 and April 10, 1993, out of 547 appointments to the SupremeCourt and High Courts, seven-five in 1983, one in 1985, and one in 199 1-were made againstthe opinion of the Chief Justice of India. The Judges Case was decided on December 30, 1981.

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judicial independence and is in consonance with the provisions of theconstitution. In principle the power to transfer a judge without that judge'sconsent is not consistent with the independence of the judiciary. But thispower is given in the constitution and has been supported from time to timeby different bodies, including the Law Commission of India. The way thepower was exercised before the emergency of 1975-77 did not expose itspotentiality of misuse. But the transfers during the emergency and later,including the ones recommended by the Chief Justice of India in 1998, haveclearly exposed its potentiality of harming the independence of the judiciary.Reading the requirement of consent in the relevant provision would have goneagainst the well-established practice and precedents. At the same time, itspotentiality of misuse had to be guarded. The Court has done that job well bymaking the transfer more cumbersome than a fresh appointment of a HighCourt judge. It has also indirectly introduced the element of consent by therequirement of asking and considering the views ofthejudge to be transferred.

Finally, though the solutions provided by the Court to the problems ofappointments and transfers may not be ideal, perhaps they could not beimproved upon in the circumstances. The constitution makers had expectedthat all constitutional functionaries will act in public interest in theindependence of the judiciary uninfluenced by personal, political, or evenideological considerations that could harm that interest. Therefore, they didnot put any additional checks that would have made the decision makingprocess cumbersome or even unworkable. No problem arose so long as theconstitutional functionaries acted on expected lines. As soon as thoseexpectations were broken and the instances and possibilities of such breachesincreased, the checks became imminent. Such checks could be created eitherby an amendment of the constitution or by an interpretation which could bejustified under the constitution. As there was no clear move for the former,229

229. Apparently two Bills, one in March 1982, and another in May 1990, were introducedin Parliament to amend Articles 124(2) and 217(l), which provided for the appointment ofSupreme Court and High Courtjudges on the recommendation of ajudicial commission. Theseamendments were not pursued and passed.

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there was no guarantee that it would have either succeeded or worked betterbecause the considerations for which similar checks were rejected by theconstitution makers apply even today."' Moreover, any moves to amend theconstitution were almost on the same lines on which the Court has decided.'

Let us, therefore, make the best of the solution found by the Court.Even though the solution is justified in the circumstances, it may not be easyto implement unless all concerned are guided by the considerations expectedof them by the constitution makers. Some of the difficulties in itsimplementation have already been noted, and others may arise in due course.There may be Chief Justices and other judges who may like to impose theirwill irrespective, or in disregard, of public interest and there may be executiveheads and other members who may always find fault with the recommendationof the Chief Justice and otherjudges. There may also be genuine differencesof opinion with respect to the public interest and the understanding of theconstitution between the executive and the Chief Justice as, for example,happened between the President and the Chief Justice in respect ofappointments and transfers after the Third Judges Case.

230. It has been noted supra that proposals resembling ajudicial appointment commissionor approval of the legislature were considered and rejected by the constitution makers becausethey would make the procedure cumbersome and bring in immature politics. I do not think thatthose reasons have disappeared or lost their validity. On the contrary, jurists read of moredifficulties in the appointment of judges in the United States because of the Senate'sconfirmation requirement. See NORMAN VIEIRA & LEONARD GROSS, SUPREME COURTAPPoINTMENTS, Preface (1998). Neither has there ever been overwhelming support for theformation of a commission. It may also be noted that some of those like Griffith, who hadearlier argued for a commission in England, do not see much reason to insist on it. See J. A. G.GRIFFITH, THE POLITICS OF THE JUDICIARY 275 (4th ed., 1991) (cited in STEVENS, THEINDEPENDENCE OF THE JUDICIARY, supra note 7, at 179-80). While Stevens leaves this issueopen, in a recent article he hints towards the possibility of "some form of Judicial AppointmentsCommittee." Stevens, A Loss ofinnocence, supra note 5, at 401. Among the supporters of theCommission, see Shetreet, Judicial Independence, supra note 10, at 652; BARENDT, supra note7, at 134; see also Surya Deva, Procedure for the Appointment of the Judges of HigherJudiciary: A Theoretical Perspective 88 (1998) (unpublished LL.M. dissertation, Faculty ofLaw, University of Delhi, India). Also note the statement of Ram Jethmalani, the Law Ministerof India, favoring the establishment of a national judicial commission for appointment, transfer,and posting ofjudges. Jethmalani also stated that it could be done only by an amendment of theconstitution which was not possible at the moment. See TIMES OF INDIA, June 11, 1999. Thedemand for the creation of a National Judicial Commission has also been made in a recently-held conference of lawyers in New Delhi. See TIMES OF INDIA, Sept. 23, 1999.

23 1. The constitution amendment bill introduced in 1982 had provided for a five-membercommission consisting of distinguished jurists while the one introduced in 1990 provided fora commission consisting of the judges almost exactly on the lines of the Second Judges Case.See Second Judges Case A.I.R. 1994 S.C. at 385. The law laid down by the Court also comesclose to the practice developed in England after the passage of the Courts Act 1971. SeeSTEVENS, THE INDEPENDENCE OF THE JUDICIARY, supra note 7, at 181. The idea of thecommission as recommended by the Law Commission seems to have been rejected by theJudges' Conference also.

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But even if everything moves ideally, it may not be easy to implementthe scheme and remove all the ills associated with the appointments andtransfers of judges. A big backlog of vacancies is to be filled up. It is anenormous task for the Chief Justice and his collegium to fill these vacanciesin accordance with the norms laid down in the two Judges cases. The creationof new vacancies is a continuous and unbroken phenomenon for which acontinuous and unbroken exercise has to be undertaken, which again is aheavy demand on the time of the judges and other resources of the Court.232

Let us hope the Chief Justice and his office will be able to cope up with thisdemand and that this demand will not create any permanent or fixed divisionamong the members of the collegium. Nor shall collegium just follow thedictates of the Chief Justice.

Appointments and transfers ofjudges are crucial for the independenceof the judiciary, but they are not the only issues about it. 33 There are otherequally, if not more, serious issues and obstacles. One of them which hasalready been noted is the problem of arrears.234 The Second Judges Case takessome care of it in so far as it authorizes the Court to direct the executive tocreate additional posts ofjudges if recommended by the Chief Justice of Indiain view of the increased work load and arrears. But that takes care only of theHigh Courts. The real and much more grave problem of arrears and delayslies in the lower courts where more than once it has been noted that under-trials have been languishing behind bars for indefinite periods in violation oftheir fundamental right to life and liberty. 3 The position in non-criminallitigation is even worse. This goes against the rule of law, which is one of thebasic features of the Indian Constitution,236 and shakes the faith of thecommon people in the effectiveness of the courts as guardians of their rights

232. According to a statement of the Law Minister of India, as many as one vacancy in theSupreme Court and 136 vacancies in the High Courts existed on that date. See TIMES OF INDIA,June 11, 1999. The Law Minister also noted that 1000 posts of sessions judges and judicialmagistrates were lying vacant in the country. See id. A petition for direction to the CentralGovernment to fill these vacancies has also been filed in the Supreme Court. See TIMES OFINDIA, Sept. 28, 1999. It is interesting that the Court should issue notices to the Law Ministerwhile the entire initiative for the appointment of judges now rests on the judges.

233. For the importance of appointments and dismissals, see BARENDT, supra note 7, at131.

234. See RAJEEV DHAvAN, THE SUPREME COURT UNDER STRAIN: THE CHALLENGE OF

ARREARS (1978); M. Shameem, Expediting Justice, 29 CIv. & MIL. L.J. 278 (1993). Accordingto a petition filed in the Supreme Court for filling the existing vacancies and for creating morecourts, 25 million cases, many of them for over 25-years-old, are pending in various courts inthe country. See TIMEs OF INDIA, Sept. 28, 1999.

235. See, e.g., Hussainara Khatoon (I) to (VI) v. Home Secretary, Bihar, (1980) 1 S.C.C.81, 91,93, 98, 108, 115.

236. See DIETER CONRAD, Die Zukunft des indischen Reschtsstaats, in ERSTEHEIDELBERGER SfJDASIENGESPRACHE, 54 (D. Rothermund ed., 1990), reprinted in Conrad'scollection of writings, supra note 75.

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and lowers the courts' prestige in their eyes. The judiciary cannot earn orsustain its independence if it loses people's faith in it. Therefore, the problemof delays and arrears at all levels has to be attended on a war footing.237

The other factor which is eroding the faith of the people in the judiciaryand constitutes a grave threat to its independence is the allegation ofwidespread corruption among the judges at all levels.238 Independence andcorruption in a judge or judiciary are self-contradictory and cannot coexist.If the judiciary has to be made and kept independent, effective measures needto be taken urgently to eradicate and prevent corruption among judges.

Post-retirement attraction of jobs for the judges handed out by theexecutive is another factor in the independence of the judges. Among otherthings, the Attorney General for India has recently called for eliminating thispractice and has instead suggested raising of the age of retirement of thejudges.239 Similarly, the Chief Justice of India, among other requests, hasasked for financial and functional autonomy of the courts for their effectiveand efficient functioning and for quick delivery ofjustice.240

A growing unease is also being felt and expressed about theaccountability of the judiciary and its extensive and frequent intrusion into thesupposedly executive and legislative domains. Although, as has already beennoted, accountability of the judiciary and how far it should scrutinize the actsof the legislature and the executive are delicate and controversial issues, thejudiciary should not be left totally unchecked.' If the independence of thejudiciary is rooted in the separation of powers, which has been resorted toagain and again by thejudiciary in support of its independence from executiveinterference, the judiciary must also in turn respect the autonomy of theexecutive and the legislature. The judiciary should not get attracted ortempted towards correcting every wrong in the society, a role that society hasnever assigned to the judiciary and does not expect it to perform. At times thejudiciary must be getting popular approbation of its intrusions into the domain

237. A petition for direction to the Government oflndia to increase the ratio ofjudges from10.5 per million people to 50 per million is also pending in the Supreme Court. See TIMES OFINDIA, Sept. 28, 1999.

238. See SEERVAI, supra note 6, at 2927, 2967; N. A. Palkhivala, Judiciary in Turmoil:Public Confidence Rudely Shaken, 26 CIV. & MIL. L.J. 299 (1990); A. N. Grover, Fall inValues, 27 Civ. &MrL. L.J. 163 (1991).

239. S. J. Sorabjee,JudgesShouldNotBe Given Post-RetirementAssignments, HINDUSTANTIMES, Feb. 7, 1999, at 6. For other similar views see N. M. Ghatate, Ensuring Independenceof Judges, 29 Civ. & MiL. L.J. 94, 96; PRATAP KUMAR GHOSH, THE CONSTITUTION OF INDIA:How IT HAS BEEN FRAMED 240 (1966); LAw COMMISSION OF INDIA, FOURTEENTH REPORT,supra note 89, at 45.

240. CJI Calls for Financial Autonomy, SUNDAY PIONEER, Jan. 17, 1999, at 5. See alsoRAJEEV DHAVAN, JUSTICE ON TRIAL 82 (1980).

241. On this issue, see generally 61 LAW& CONTEMP. PROBS. (1998) (providing extensivetreatment on judicial independence and accountability).

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of the legislature and the executive, but in the long run it may erode the verybasis and justification of its own independence and endanger it.2

12

Let us conclude with an optimistic note. The constitution makers ofIndia had a grand vision of a free and just society based on the rule of law. Inthe realization of that vision they had assigned a prominent role to thejudiciary which it had to perform independently and uninfluenced by the othertwo branches of the government. By and large the expectations of theconstitution makers have been respected, if not fulfilled, by all concerned.Among all the troubles and tribulations India has faced since thecommencement of the constitution, the judiciary has performed its role fairlywell. In its times of trouble with the executive, the judiciary has received thespontaneous and sustained support of a powerful legal community and of thepeople in general. Therefore, the judiciary has generally been able to maintainits independence and perform its role along the expected lines. I often wonderwhether the largest democracy on earth, among all its adversities, has beenable to sustain and effectively operate its constitution because of theconstitution makers' vision of an independent judiciary and the sustenance oftheir vision by the people of India. In spite of many failings, it is no meanachievement for the people of India and their institutions that they have beenable to sustain a democratic constitution where all others in similar or evenmore favorable circumstances have either not attempted or failed. Theindependence of thejudiciary appears to be one of the most prominent factorsin the occurrence of this phenomenon. Let us therefore, preserve, protect, andpromote it.

242. See id; see also Shetreet, Judicial Independence,.supra note 10, at 635; Rao, supranote 88; STEVENS, THE INDEPENDENCE OF THE JUDICIARY, supra note 7, at 179. Cf BARENDT,supra note 7, at 139.

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Securing the Independence of the Judiciary - The Indian ...mckinneylaw.iu.edu/iiclr/pdf/vol10p245.pdf · SECURING THE INDEPENDENCE OF THE JUDICIARY-THE ... before them according to